Bozize Call for End to ICC Probe Under Scrutiny

Friday, 16 January, 2009

The link has been copied

Katy Glassborow

Contributor

Mélanie Gouby

DRC Multimedia Producer

Central African Republic, CAR, president Francois Bozize is likely to have watched this week’s confirmation of charges hearing for Jean-Pierre Bemba at the International Criminal Court, ICC, with a sense of achievement – but also anxiety.

Bozize has got what he wanted – one of his former foes is on trial in The Hague, charged with alleged war crimes at the time of Bozize’s overthrow of the country’s former president Ange-Felix Patasse.

However, last summer, Bozize, allegedly fearful that the ICC could also launch proceedings against him, asked the United Nations Security Council, UNSC, to halt the court’s ongoing investigations in the country.

In a letter dated August 2008, Bozize, formerly the head of the army, called on the UNSC to declare CAR courts competent to try any war crimes committed on the country’s soil since the end of the 2003 coup in which he seized power. The ICC is only able to intervene to prosecute breaches of international law if a country is unable or unwilling to do so itself.

But local human rights groups have pointed out that the country has no capacity to try war crimes or crimes against humanity. They warn that Bozize’s request appears to be little more than an attempt to evade justice for crimes committed by troops under his command.

“Bozize…has what he wanted – Jean-Pierre Bemba before the court – and thinks he could maybe have Patasse. But he doesn’t want himself or his allies to be tried,” said Marceau Sivieude of the International Federation for Human Rights, FIDH.

In 2004, Bozize asked the ICC to investigate crimes allegedly committed by the likes of Bemba and Patasse before and during the overthrow.

His referral was endorsed by the Court of Cassation, the country’s highest judicial body, which said its justice system was unable to carry out the complex proceedings necessary to investigate and prosecute war crimes.

In May last year, Bemba, former vice-president of the Democratic Republic of Congo, DRC, was charged with crimes committed in neighbouring CAR between 2002 and 2003. ICC prosecutors say that his Movement for the Liberation of Congo, MLC, helped Patasse try to quell the uprising against him – allegedly raping, torturing and terrorising civilians along the way.

So far, Bemba is the only person indicted for atrocities in the country, but the court’s investigations continue and more indictments are expected.

ICC INVESTIGATIONS CONTINUE IN CAR

Although ICC prosecutors are unwilling to give details of ongoing investigations, experts believe they are currently looking into reports that atrocities have been committed by government troops which have been fighting an insurgency in the north of the country since 2005. Conflict broke out because rebels accuse the government of neglecting the lawless region, which lacks roads, schools and health care facilities.

“We know of a lot of violations of human rights abuses committed by the army against rebels, or people viewed as rebels, in prisons and detention centres. Many are arbitrarily detained and tortured and treated badly,” Sivieude told IWPR.

“There are many other violations committed by the army which have been documented in reports by [the UN mission in the CAR] BONUCA.”

Godfrey Byaruhanga from Amnesty International, AI, said the government is nervous it will be held to account for these crimes should the ICC investigations continue.

“Many of those likely to be prosecuted are leaders in the government and security forces,” he said.

Erick Kpakpo, coordinator of the Organisation for Compassion and Development for Families in Distress, OCODEFAD, said that Bozize realised he had left himself vulnerable by inviting the ICC to investigate crimes in CAR.

“He took a chainsaw, and he cut the branch where he was sitting. He may now fall,” he said.

Bozize’s call to the UNSC to end ICC activity in the country came just two months after ICC chief prosecutor Luis Moreno-Ocampo wrote to him, demanding attention to be paid to continued acts of violence in northern CAR.

The UNSC can suspend ICC proceedings in relation to a particular situation for up to a year.

Sudan’s president Omar al-Bashir – the first head of state to be accused of war crimes by ICC prosecutors – has pushed for this in relation to the troubled region of Darfur, demanding that peace efforts be given a chance before an arrest warrant against him is issued.

CAR lawyers, human rights campaigners and journalists say that Moreno-Ocampo’s announcement in July 2008 that he planned to ask ICC judges to indict Al-Bashir scared Bozize, as it demonstrated that a president is not immune from prosecution.

In his letter to the UNSC the following month, Bozize said that back in 2004 he had asked the ICC to look only into crimes committed around the time of the regime change and stressed that the CAR courts have not been declared unable to rule on events that took place thereafter.

Employing arguments used by Al-Bashir, Bozize asserted that Moreno-Ocampo’s calls for attention to be paid to ongoing violence would jeopardise the Comprehensive Peace Agreement, CPA – signed in June 2008 between the government and rebel movements – if combatants were subsequently arrested.

He also said that amnesty laws brokered under the CPA had ended disputes between the government and rebels, allowing the authorities to turn “a new page in the interests of national reconciliation and peace”.

GOVERNMENT AMNESTIES IGNORE VICTIMS’ RIGHTS

However, while amnesties have been provided for Patasse and rebel leaders for crimes committed during and after the coup, experts say that these do not extend to war crimes and crimes against humanity.

Rights activists say that by issuing amnesties, the government has failed to address victims’ rights to receive justice for crimes committed against them.

“Amnesties have rolled out the red carpet for criminals,” said CAR human rights lawyer Mathias Morouba, who works with victims of the conflict.

Renner Onana, head of the human rights section with BONUCA, the UN peacekeeping mission in CAR, said that amnesty laws have failed to address war crimes justice.

“Either you go to the ICC to prosecute these crimes, or you build a transitional justice system. You cannot say amnesty covers everything. It needs to be supported by a justice mechanism – either an international justice mechanism like the ICC or a national justice mechanism,” said Onana.

Morouba also doubted Bozize’s professed willingness to try suspects in CAR, saying that if he wanted to convince the UNSC that his country’s courts are capable of doing so, investigations and prosecutions should already have begun to demonstrate this.

“To my knowledge, nothing has been started yet,” he said.

“I fear [Bozize’s letter] is to accommodate criminals and to promote impunity. I fear it would be a travesty of justice – we will pretend to prosecute and judge people, but they will be back in the ranks of militias the day after.”

MILITARY TRIBUNALS INADEQUATE

Currently, soldiers suspected of committing atrocities can be tried at a military tribunal.

Over the years, Bozize has declared that those responsible for crimes in the north – including army troops – would face this form of justice.

But FIDH points out that the tribunal – which, due to a shortage of funds, sits only a few times a year – has mainly tried petty crimes, such as theft, rather than serious abuses.

When you consider the crimes still allegedly being committed by the army in the north – including summary executions and pillaging – the prosecutions that have taken place so far are minor by comparison, said Sivieude.

In a recent trip to CAR, a representative of FIDH asked the prosecutor of the military tribunal why members of the presidential guard have not been indicted for suspected crimes.

“The prosecutor said that he made announcements on the radio calling for victims to testify so that they could open up an investigation, but no victims came forward….so the prosecutor never opened an investigation,” said Sivieude.

NO CAPACITY TO TRY WAR CRIMES

Meanwhile, observers say that the country’s national courts are unable to prosecute those suspected of atrocities, because the government still has not passed war crimes legislation.

“Since [these] laws are not integrated into our national legislature, how can the judiciary become competent to judge such crimes overnight? It is not possible,” said Marie Edith Douzima-Lawson, who coordinates a network of human rights NGOs in CAR and also represents victims in the Bemba trial at the ICC.

Due to an apparent lack of political will, draft war crimes legislation, which has been languishing before the ministry of justice since 2006, has not yet been discussed by the cabinet.

Jean-Serge Bokassa, CAR member of parliament and son of former dictator Jean Bedel Bokassa, said he recognised the importance of placing war crimes legislation on the statute books.

A further obstacle cited to national prosecution of war crimes is the state of the national judiciary, particularly in the restive north where the infrastructure lies in tatters.

“In the north, courts cannot function as they have been neglected. Even at the best of times they didn't function properly anyway, and several years of conflict have destroyed the little that there was,” said Byaruhanga.

“Magistrates have been displaced or driven out or fled for their safety from those areas.”

LEGAL SYSTEM RIDDLED WITH CORRUPTION

BONUCA, which is working with the UN Development Project, UNDP, to improve the CAR justice system, cites endemic corruption as a further problem plaguing the country’s courts.

According to the UN mission, politicians interfere in the country’s judicial system, and the minister of justice has been know to intervene in proceedings, by arresting people and asking expressly for certain judgements not to be passed.

“The judiciary…has independence on paper but in practice, [it] has to suffer the executive’s wishes. There are people in power who have committed crimes and are not in trouble. They have an umbrella, they are protected,” said Kpakpo.

Lambert Zokoezo, who worked as a judge for 12 years, and is now president of the Central African Human Rights Organisation, OCDH, said judges are often subject to intimidation, “If a judge looks at an affair too closely, he can be threatened.”

Prospert Yaka Maide, a journalist from the Agence Centrafrique Presse, agreed that intimidation was a serious problem in the CAR legal system.

He said that lawyers are threatened by the presidential guard – which is supposedly there to protect both the president and the country’s judges – and also receive threats that they will lose their jobs.

“[Judges’ and lawyers’ groups] send regular statements to the press denouncing such abuse,” he said.

Both BONUCA and UNDP recognise these problems and are devoting funds to build up the CAR justice system. In an initiative launched this month, the organisations will monitor courts, provide training, and build up infrastructure which has crumbled after years of neglect.

Sebastien Gouraud from the UNDP rule of law unit said the project would build courtrooms, archive facilities, and develop criminal records to make them accessible to other authorities, such as the police.

PERPETRATORS MUST BE HELD TO ACCOUNT

In the meantime, lawyers and rights groups are demanding that the ICC continue its investigations in the country to bring perpetrators of war crimes to account.

“Marginalised victims are waiting for the ICC to do them justice,” said Morouba.

Goungaye Wanfiyo*, president of the Central African League for Human Rights, said the international community must ignore Bozize’s call to block further ICC activity and is urging the court to carry on investigating.

He warned if the ICC pulled out of CAR, the consequences could be devastating.

“If [the court] leaves, the people will lose faith in peace. They see the impact of the ICC because the leaders are scared,” he said.

“It is a troubled time again here, there are tensions and if the people are not protected, if rebels and factions see they can act with impunity, this will go really bad.”

IWPR repeatedly approached the CAR justice minister Monsieur Thierry Maleyombo, in The Hague for the confirmation of charges hearing against Jean-Pierre Bemba, for comment on the claims made in this article about Bozize’s motives for asking the ICC to halt investigations in his country; the competence of the national court system; and the independence of judges.

We were repeatedly denied our request for an interview, or for details of other people within the justice ministry in Bangui who could answer our questions.

However, IWPR was able to speak to Abakar Nyakanda, High Commissioner for Human Rights in CAR, a government-supported institution, about Bozize’s request. Nyakanda said it was made in the interests of the peace process.

“He asked the ICC to suspend its work.. to find a way out of the ongoing violence. I think the president's demand makes sense and the ICC would have jeopardised peace because the dialogue were based on amnesties."

Regarding the allegations of abuses by soldiers in the north of the country, he said, “We are in a time of war - human rights are somewhat torpedoed. When people rebel against the state power, it must respond. The state forces only defend themselves. It is the rebels who attack."

Katy Glassborow is an IWPR international justice reporter in The Hague. Melanie Gouby is an IWPR London-based intern.

* On December 27, just a few days after speaking to IWPR for this report, Goungaye Wanfiyo was killed when a car he is believed to have been driving hit a truck.

Goungaye was due to represent CAR victims in Bemba’s confirmation of charges hearing this week.

The then-French presidency of the European Union said Goungaye was a “courageous activist, whose steadfast commitment to the defence and promotion of human rights in the Central African Republic was recognised by all.

“He notably campaigned for international criminal justice for victims of violence through his support for the work of the ICC. This commitment also led him to participate actively in the forum on inclusive political dialogue that has just come to a close in [the CAR capital of] Bangui.”

As a result of his activities, Goungaye had received death threats several times, and had also been arrested three months ago.

FIDH, to which Goungaye was closely allied, has requested an impartial and independent investigation to determine the exact cause of his death.

“Goungaye Wanfiyo was a lawyer with immense integrity, someone who worked [for] independent and equitable justice in his country. The human rights community mourns the loss of an irreplaceable human rights defender,” said FIDH’s Sidiki Kaba.