Stefan Waespi is an international judge at the Special Criminal Court (SCC) in the Central African Republic (CAR). He is part of the investigative chamber, playing a key role in examining and addressing complex cases of human rights abuses, was crimes, and crimes against humanity.
Stefan Waespi has a rich background in international and criminal law, having served as a Federal Prosecutor in Switzerland, as a Military Prosecution Advisor for the United Nations in the Democratic of Congo, and as a Senior Trial Attorney at the United Nations International Criminal Tribunal for the former Yugoslavia.
The Special Criminal Court in the Central African Republic is a unique hybrid court established in 2015. Endowed with the power to prosecute human rights abuses committed by national governments and militias since 2003, along with grave violations of international humanitarian and human rights law by both nationals and foreigners, the court holds significant jurisdictional authority. Amid high expectations for the court to deliver justice for victims, it has issued only one case in the past nine years, yielding varied levels of satisfaction with the outcomes. This year, as the court reopens its second case, many challenges remain pending; including the absence of a consistent financing mechanism, difficulties in victim protection due to militia control over 70% of the Central African Republic territory, and overlapping mandates with the International Criminal Court. Despite these obstacles, can the Special Criminal Court still become a catalyst for advancing victims' rights in the Central African Republic? As the court grapples with the complexities of prosecuting human rights abuses and atrocities, how effectively can it address the pressing needs and demands of victims?
Inteview by Isabella Barjon, Malika Belghoula, Fiona Lebert and Alicia Magnac.
The interview was conducted in early May 2024 and has been edited for clarity.
Thank you very much for the invitation. I think it is important that we, from the Court, explain what we are doing, because as all these international or hybrid courts, we are funded by the international community and I think it is crucial that we explain what we are doing, where we are making progress and where our obstacles are.
I just want to stress a couple of important points. The Special Criminal Court is a national Court, that is very important to understand, with international elements which makes it a hybrid court.
The international elements are that: we are a mix of national judges and international judges, like myself ; we have a number of excellent international legal officers (conseillers juridiques), of all levels, African ones but also French ones, Swiss ones ; we apply national law but we are specifically directed by our regulation to apply international law as well.
We were established by the national parliament in 2015 but we have been operational only since october 2018. That explains a little bit why we "only" - as you called it - have one judgment. However it is the final judgment, something with convictions, something that the ICC, who has been there for much longer, has not achieved so far. Our first five year mandate, 2018 to 2023, has just been extended for another five years. The next five years are really crucial and I really expect that we will come out with quite a number of decisions.
We have a second trial on the way, it is called N’délé 1, and it is fascinating. We just had an interesting fight over whether one of the suspects - or inculpé - in a different case will come as a witness in this case N’délé 1. It is a balance between his rights as a suspect or inculpé vis à vis, the search for truth by the trial chamber. This decision is public.
We have more than forty people in detention right now, in maybe ten or more investigations. All these investigations will finish in the next two, three years.
I am one of the international judges in the investigation chamber so my views are limited to my role, my experience as a juge d’instruction, but of course I have some knowledge about the other case and we can certainly talk about decisions that are public.
My role as a juge d’instruction is to investigate, together with my national colleague and the fantastic magistrates, the crimes before us. We currently have, I believe, six investigations with probably more than twenty people in pre-detention. It is not easy but it is possible. Thatis my little introduction and I am happy to answer your specific questions.
Could you explain what new features the Special Criminal Court in the Central African Republic introduces for victims ? For instance compared to its domestic courts and the International Criminal Court ? And do these features encourage the victims to turn to the SCC rather than other courts for crimes over which it has jurisdiction ?
The victims do not really have a choice to which jurisdiction or Court they can turn to. For victims in the Central African Republic, there are in theory 3 Courts or jurisdictions. We have the ICC (the International Criminal Court in the Hague), we have us (the Special criminal Court), and we have the ordinary national courts. But each of them have very distinct features so that there should not be an overlap.
The ICC has been here for a long time, more than 10 years. They investigate only if the authorities here are enable to do so. The authorities here in CAR said sometime ago to the ICC: "please help us, we are unwilling or enable’’, so the ICC started cases, the Bemba case, the Ngaïsonna case and Yekatom and so on. But they only have very little resources, which means that they focus only on a few cases. And also, they publicly said in December 2022 they are going to leave the CAR's jurisdiction. They will just finish those cases, perhaps a few arrest warrants which are public, but normally it clears what the ICC does, and victims can turn to the ICC for these specific cases.
Then, there is us, the Special criminal Court. We are a specialized court, a court on war crimes and so on.
And then we have the ordinary courts, and they just had, or they keep having one or two sessions criminelles per year, so they have normal crimes but also a lot of sexual violence but not necessarily linked to an armed conflict or to widespread and systematic attacks so that they would qualify as crimes against humanity. I have seen they have some war crimes as well, but very few.
Having said that, the victims of any situation who want to claim their rights have to turn to one of these three jurisdictions and see which one has the case in which they have an interest, and they can not influence that decision. It is really the prosecutor of the ICC, the prosecutor of the Special Criminal Court, or the prosecutor of the ordinary justice who open a case.
Having said that, the Special Criminal Court has something unique that allows victims, as parties civiles, to directly ask us, the chambre d’instruction: “please look into our case, we are victims’’. So there is a second direct route to start a case before the Special Criminal Court. The danger is that victims come to us with cases that do not seem to be part of our jurisdiction, either because they are not crimes against humanity but are isolated events, not part of a widespread and systematic attack against a population, or because they do not occur in an armed conflict, and to have an armed conflict you also need to have these chapeau elements. You have to prove the intensity of the conflict, have to have two parties and so on, that is not really easy. While we still have lots of violence here, you can not always say that there is an armed conflict happening. You also have to see who is the perpetrator. It is not easy for us to tell victims who directly come towards us : “I’m sorry, unfortunately yours is just an ordinary crime so you have to turn to the ordinary justice system.’’
We have a great sensibilization outreach unit who explains all these issues to the population, to civil society, to the victims' organizations. Overtime, as we keep continuing with our work, the distinction between the ICC, us and the ordinary system becomes more and more clear.
Regarding the Special Prosecutor, he is an international magistrate at the Special Criminal Court and he is Mr. Toussaint Muntazini, a native of the Democratic Republic of Congo who has worked there for many years. What influence does the Special Prosecutor's strategy have on the Court’s choices ? How can Mr. Toussaint Muntazini’s strategy be characterized at the Special Criminal Court ?
Toussaint Muntazini is a fantastic guy, very experienced. It is really him, as the Special Prosecutor, who decides which dossier will get investigated. That is a very difficult decision as you can imagine, because, as we explained, we have jurisdiction since 2003, so you can imagine how many crimes, war crimes, crimes against humanity, have been committed in these 20 years.
There is a fantastic report, the UN Mapping report from 2017, which is public, which lists all the private sources for these crimes, and there are hundreds which fall in theory under our jurisdiction. It is his job to pick which ones he wants to investigate. Of course we have very limited resources. He has to decide which are the right cases.
Also, recognizing that our Court is temporary, he has very limited time. Maybe, after this second mandate, the second five years in 2028, the government says “no, that’s it, thanks a lot for your work, thanks for the fifteen judgments you have made, we want you to end”; or the international donors say “you have investigated now two times five years”. Just to say, it is limited and he has to pick the right cases.
He has published his strategy, called “Stratégie d’enquêtes, de poursuites et d’instruction”, from 2018, which lists in details the criteria and all the circumstances under which he makes his decisions. It is also similar for the ICC, by the way.
The key element, the key condition, is the gravity of a crime. He explains it in his paper, what he means by that. It is certainly the number of victims and the nature of the crimes for example. He also lists sexual violence as a key element regarding whether he will pick a case or not. There is the behavior of the alleged perpetrator, if it is particularly heinous, or atrocious, or cruel, and again in this connexion he mentions sexual violence. Another factor is the impact a crime has on a community, so it is not just small, nothing is small, but if you have many crimes, you know, you might look at the impact. Also, the level, the seniority of an alleged perpetrator, you know whether he is a high-ranking person, that’s a guy for the ICC, mid-level are for the Special Criminal Court, and low-ranking perhaps for the ordinary system. Also important is the date, I think it is clearly easier to investigate crimes that occurred recently, and not just in 2004, so I think that is another element the Special Prosecutor will take into account. Plus, perhaps, because he is an international prosecutor, he is independent, that is clear. It is easier for him, maybe, to look at a so-called “equal” representation of the perpetrators. He might look to a representation of these perpetrators for the different warring factions, or in different parts of the Central African Republic, to present in his picture, in his strategy, a so-called “balanced” approach to the possible actors and to the territory of the Central African Republic. But it is still too early to see what his strategy is, or was, because we only had two cases.
In a court, victim protection is a key issue, and there is one specific element here, the security situation in the CAR. What are the Special Criminal Court's victim protection policies? How were they established?
I ca not talk much about the policies, as you know, it is a very sensitive field. Fortunately, the SCC, as a specialized war crimes court, has a dedicated witness and victims support and protection unit. That is crucial. Without that, you would not be able to investigate these cases. It is a small unit, but it has dedicated and really experienced specialists, including, that’s really crucial, a very experienced female psychologist. The head of this unit is a very experienced professional, he used to be the head of the Lebanon witness and protection unit in the Hague.
These strategies and operations are confidential, but in our rules of evidence and procedure, called RPP, the article 46 lists what is expected from this support unit. It says this unit has to provide the witnesses and victims, if required, with advice, practical assistance, administrative, logistic, security, medical, psychological, or social. This unit has to pay particular attention to children, vulnerable people and victims of sexual violence. Even outside this dedicated unit, all our staff in the court, especially the police and investigators, is trained to recognize and identify special needs of the witnesses and victims, such as trauma. Then they refer them to the witness and protection unit such as psychologists.
There is another part of witness protection made more visible, which is when the victims turned witnesses and come to the trial to testify. These are the procedural measures. We have at the SCC the same measures of typical international courts : assignment of another name, so the victim does not testify under his or her normal name, blurred voice, or even closed sessions (huis-clos), which means the victim testifies and the public is excluded. Only the judge, the defense and the accused can see the victim. This was the case for the rape victims for the Paoua case, the first case we have finished.
There is another interesting tool, called isoloir. Kind of a wardrobe, a large box, placed in the middle of the courtroom. Even if there is a closed session, the victim can only be seen by the judges. The other participants can hear their voice, but can not see it, the judges only see the victims and vice versa. It has been really effective, so effective that the ordinary justice sessions, when they have their sessions criminelles, they asked us to use it for the view of the public and the accused in this case.
All the trials of the SCC are broadcasted live on the radio. The public is attentive, they like it: it is a good measure that the population can see that we are actually doing our jobs, that we are advancing in the trials. I think it is a great tool.
There is also the possibility of anonymous witnesses. Nobody, except for the judge I guess, has the details. I am not sure it has been used here. There are also laws on the anonymous witness in the European court of human rights, saying you cannot rely exclusively or only on anonymous witness, so people here are hesitant to use this sledgehammer of anonymity for witnesses.
One of the roles of this witness and protection unit is to find the witnesses who come to testify to Bangui. They go to these villages. Getting in touch with them is not easy. They have to conceal who they are because if they see that a witness goes away, it is easily deducted where this person will go to testify. This protection unit is really good, to have a smooth operation that allows victims and witnesses to come to Bangui in a way that does not harm them.
Protecting victims at the Special Criminal Court, that also means protecting them from the trauma that could be repeated and compounded if they had testified in several courts before. Since domestic, ordinary courts and the International Criminal Courts are competent to try certain crimes in common with the SCC, there is the question of cooperation, so victims are not retraumatized. How does this cooperation work? Is it effective ?
That is a great, crucial question. I tried to explain that normally, the three jurisdictions do not really overlap. It does in a sense, but we try to talk to each other to avoid what you outlined in your question. Not that they testify in several courts, but already that they are interviewed by two different jurisdictions, so that the ICC interviews witnesses, and then we do the same witnesses: we really have to avoid that. It is a “do not harm”.
That is why when we have an investigation where we think that the ICC might already have an investigation, which we know from public documents, from public arrest warrants, from procedural decisions, we routinely ask the ICC “do you have information on that?”. Then there is an exchange of information, there is even an exchange of witness statements. If the ICC says yes, considers that this could interest us, then the ICC goes back to these witnesses, and asks them if they agree to transfer their witness statement to the SCC. That is quite a bit of an undertaking to the ICC to go back to help us, another jurisdiction, in doing our work.
In our experience, it is a very good cooperation at this time, and it has developed over time. The deputy prosecutor just came to Bangui last Thursday, to discuss issues, to introduce a new model of complementarity. Since last November we also have details of understanding between the ICC, the SCC, and local courts.
The cooperation works very well, but it is challenging, in many respects, because the ICC has been here so long. They have a lot of contacts, a lot of data, a lot of documents assembled. It is actually almost a bonanza for us, but we have to testify, of course, when we want to have access to the documents, but the cooperation is very good.
The Special Criminal Court has broken new grounds with its first jugement, which was about massacres that were committed in 2019. For this first judgment, how were the reparations decided, and what were they based on? What is the difference between the decision of the Court d’Assise and of the Court of Appeal?
Reparations is really a crucial aspect. We have a legal basis in article 129 of the RPP, in Section A. It says that, at a request from the victims, parties civiles, and after hearing the parties (especially the convicted of course) and the Special Prosecutor, the Trial Chamber can order individual or collective reparations. These are the key words.
And then, Section B of article 129 says, in quite some details, that the Trial Chamber has to make sure that the measures of reparations are adapted to the nature and magnitude of the damage suffered by the victims, by the parties civiles. In particular, the Trial Chamber may order financial compensation, training and socio-professional integration measures, medical and psychological care measures, or measures for the establishment of agrarian programs or industrial development fund, or the establishment of educational programs.
Section C states that in a process of deciding which measures should be ordered, the trial Chamber can invite a Service d’aide aux victimes et à la défense (SAVD). That is a small section, that both victims and defense can solicit for external fundings. You can already see the parameters, it is very open, for individual and collective reparations.
The Trial Chamber has a lot of aspects to play with, with the nature or magnitude of the crime, and it also has to contact the victims, which is crucial, because the reparations are victims-driven, or parties civiles-driven. We have an example, an unfortunate example in the Paoua case, where one victim only came too late at Appeals level and had asked for reparations, and unfortunately, he or she was no longer eligible.
A good example of how the whole system works is a very recent public decision by the Chambre d’Appels, from March 25th 2024. They had to decide on whether a Memorial should be put out as a collective reparation measure. The title of the decision by the Appeal Chamber is very instructive, it says “Arrêt n°2 relatif à une demande de réparation collective sous forme de projet mémoriel”. It is really interesting and it lists all the parameters of how a chamber, trial chamber or appeals chamber, calls about to decide and eventually order reparations. At this point, the Trial Chamber and the Appeals Chamber sent this Unit SAVD into the field, they talked to people and made 56 interviews, and asked for further opinion to think about that. Is it a good idea to have a memorial, or is it a bad decision? And interestingly enough, with one exception, all the others said “no, it’s not a good idea to have a memorial”, because it will insight maybe further violence. One victims group said “how about a memorial for us, 20 years ago”, and so on…
It is really interesting and important to have the opinion of the affected victims. Obviously, we do not want to impose on victims groups reparation which they do not want.
In the same decision, you have a reference to the principles, by the Appeals Chambers, on how to give reparations. And the principles come from the decision of 23rd October 2023, the Paoua case. The principles are the principles of dignity, non-discrimination, and non-stigmatization, so you have to really look at all the victims, especially the children, the elderly, and victims of sexual violence. So that is number 1.
Number 2, the measure has to be adequate and proportionate.
Number 3, very important and something I think the Special Criminal Court almost pioneered, we said that the measure has to be effective, it has to be realistic. It cannot be that measures are ordered which cannot be financed, for which there is no money. If it is only fictive, wishful thinking, the victims will be harmed again, will be harmed a second time. Maybe a fallout a little bit, the Hissène Abré case, ten years ago, the Trial Chamber and I think even the Appeal Chambers ordered quite substantial measures for victims, but it was not financed. Of course that is extremely bad, the victims are disappointed, they had to come to testify and relive traumas and then they receive measures that will never be implemented. But this point is that it has to be financed. The moment it is ordered it has to be financed. And in our case, and I will come to that in a second, we have the money. Otherwise we would not have ordered reparations for the victims.
I gave you already 3 criteria which the Appeals Chamber has set out for reparations, a fourth one is the engagement with the victims. I explained it, you have to speak to the victims, you have to ask them, you know, is that is fine with you, and so on.
Of course, another element is “ne pas nuire” (do not harm). Even the payment, the actual payment of this money, is a very very difficult undertaking. But to give a thousand dollars to a victim of sexual violence, you have to see whether there is access to a bank, whether the victim is part of a larger structure, that is a huge challenge. And I can tell you that again, the Appeals Chamber and its Unit SAVD, is now about to implement these reparations ordered in the Paoua case. That is a huge challenge.
Precisely regarding the second case, at this point of the process, what future prospects does the court offer victims? Also given that it will soon have ruled on several situations, because we know that judgment in a second case resumed in January 2024 as you mentioned. What can we expect from the Court for the next few years, how will financial reparations be implemented, how can victims be guaranteed effective access to those reparations?
The second case started, I think they have heard a thousand witnesses.
As I mentioned in the beginning they wanted to interview the suspects in different cases, so there is a legal battle around that. By the way, the suspects have, for the first time, an international lawyer, a French lawyer, which I think is great because it also means for us to raise our game. I think they will finish the second case very soon, the N’délé 1 case, and then there will be written judgments again, beautifully motivated written judgments, which might come out later this year.
There is a lot happening, we are driving by sight. There are so many things happening around us, we just take it step by step. I think the groundwork has been laid in the Paoua case, and now we see what the future brings.
In terms of payments for the victims, it really depends enormously. A victim in Bangui has completely different needs and access to whatever, to a bank, than a victim in a rural area. All these aspects will be taken care of by our very excellent unit SAVD, who has assembled a lot of experience, and I also know that they liaise with the people from the Trust Fund for the ICC, so that there is a coordinated approach.
The ICC has this Trust Fund, there is money there, and again I think the ICC will look at us, how much and how we give reparations, so that it’s not completely a different approach from the ICC vis-à-vis to what we are doing. Because for many victims, my guess is, they probably don’t know the difference between the ICC and the Special Criminal Court. I think we are expected to have a coordinated approach to this crucial issue of reparations.
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