Widespread impunity prevailing in the Central African Republic applies in particular to sexual and gender-based crimes, which are increasingly documented and recorded. As criminal prosecution can only be limited in the absence of an effective judicial structure, we look here at possible solutions. These include the so-called "holistic" approach promoted by the Institut francophone pour la justice et la démocratie, along with the team of Nobel Peace Prize winner doctor Denis Mukwege of Congo and the ongoing Truth and Reconciliation Commission project.
In the Central African Republic (CAR), as in all states marked by recent conflict, dealing with sexual violence is one of the major issues that transitional justice must address. Worsened by the crisis and perpetuated long after armed clashes cease, sexual violence generates a specific form of impunity, which is difficult for "traditional" judicial instruments to overcome.
Sexual violence fuelled by conflict
The CAR has been experiencing cyclical crises for more than twenty years. In the early 2000s, tens of thousands of women and girls were victims of sexual violence, used as a tactic of war during the civil war that ended with the peace agreements signed in 2007 and 2008. Since 2012, the country has been facing a new crisis. That year, several rebel groups joined forces to form the Seleka, whose objective was to overthrow the government of François Bozizé. Civilian populations quickly became a target and were subject to continuous reprisals. In October 2017, a Human Rights Watch report estimated that - while the country has a population of about 4,600,000 according to the World Bank - the number of internally displaced persons was 600,000 and the survival of 2,400,000 people depended on humanitarian assistance.
In this context, gender-based violence needs special attention. It takes different forms, including sexual violence. Already a big problem before the crisis, it has been used in the context of the conflict as an instrument to terrorize and "punish" civilian populations. Indeed, rape - whether collective or not - and sexual slavery are now commonly practiced by armed gangs. In addition, as observed in a majority of armed conflicts, domestic violence, sexual exploitation and forced marriages are increasing. Thus, the number of victims does not decrease and includes, to a lesser extent, men and children. The figures are all the more alarming as a large proportion of victims are not counted, as they have not sought help due to fear of stigmatization, lack of information and/or lack of financial resources. As a result, it remains difficult to accurately assess the extent of the phenomenon, especially for the most vulnerable populations, including displaced or detained women.
In CAR, the GBVIMS (Gender-based violence information management system), a tool created by UNHCR, IRC and UNFPA to enable different service providers to better manage data and share information in an ethical and secure manner, is also affected by this challenge, as well as by the small number of organizations that feed it and do not cover the entire country. It is nevertheless a reliable and relevant source, particularly concerning the variations observed in CAR since 2014. While reporting and redress have been facilitated by the decrease in intensity of the conflict, the level of violations did not decrease between 2015 and 2018. The number of gender-based violence cases recorded has increased from 7,000 in 2015 to an average of 10,000 over the past three years, including about 2,000 cases of sexual violence. In 2018, 1,969 incidents of sexual violence were recorded, including 1,621 rapes and 348 sexual assaults. 92% of GBV victims are girls or women, while 8% are boys or men. 88% of victims are adults, 10% are between 12 and 17 years old, and the remaining 2% are under 12 years old. A significant indicator of the specific nature of GBV and sexual violence, including post-conflict, is that 57% of GBV cases were committed by a partner or ex-partner and only 25% by a perpetrator who is not related to the victim.
There are therefore many victims linked to the conflict, whether they are directly involved in the conflict or as a result of its social consequences. If nothing is done at the collective and individual level, the frequency and severity of cases may increase in the future.
The reign of impunity in the Central African Republic is regularly denounced by national and international actors. It seems particularly acute with regard to sexual violence. Impunity in this regard is complex, as it is based on multiple factors. First, there is a contextual impunity: the inability of the Central African judicial system to deal with sexual violence is primarily due to the local context, power relations and the specific legacy of violence over the past ten years. Then there is especially the political and military capacity of some perpetrators (or sponsors) of sexual violence to escape punishment for any mass crime, due to their social position. In CAR, as in many other similar contexts, it is often primarily the political, military, economic and social capacity to resist the authority of judges that determines the fight against impunity.
This is correlated to the material capacities of the judiciary. However, the infrastructure in CAR, including the judicial infrastructure, has been destroyed and all judicial personnel have taken refuge in Bangui. While the reconstruction and redeployment of magistrates and civil servants in the provinces has begun, the functioning of the judicial system is far from being normal. People including victims are often isolated and threatened. The violence, born of the conflict, has therefore provoked a real vicious circle whose effects are constantly being felt.
Rape in conflict is not the only expression of this type of crime: there are also, in peaceful societies, very many cases of sexual violence whose intensity and recurrence reflect a particular and unequal conception of the relationship between men and women. While sexual violence "in war" must be clearly distinguished from violence committed outside conflict, the fact remains that all cases are fundamentally marked by a social construction based on male domination. Its effects are disastrous and have as a corollary a certain tolerance towards this violence, which can go as far as the social impunity of the perpetrators and the stigmatization of the victims. Transitional justice then faces the challenge of having to implement - in the complex context of reconstruction - solutions that are already very difficult in peacetime.
Finally, the issue of conceptual impunity for perpetrators of sexual violence deserves to be raised. The very nature of the judicial process, integrated into the criminal justice system, can indeed be perceived as an "obstacle" to the effective conviction of perpetrators, since preliminary investigations, the burden of proof and judicial confrontation often seem insurmountable, even in peaceful and well-functioning states. Thus, the very principle of the trial can be called into question since the requirements inherent in a fair trial seem paradoxically to put victims at risk, including because of the low conviction rates. During post-conflict periods, victims are often in a position of material and psychological deprivation. How then can we provide sufficient evidence to support facts that are often old and committed in the context of silence and opacity made possible by dictatorship and war? In such circumstances, a trial can be a highly dangerous space for victims, as it can lead – according to the principle of reasonable doubt - to the acquittal of the accused and to a new violence felt by the victim, even to his or her marginalization.
Comprehensive victim support
From this perspective, no mechanism likely to help address sexual violence in CAR should be overlooked. The establishment of the Special Criminal Court and the gradual resumption of criminal sessions before the ordinary courts are positive signals to Central African society, indicating an end to total impunity. However, they may not be sufficient to respond to all situations and all forms of violence. Particular attention must therefore be paid to the proper functioning of other instruments, which may be complementary to them with regard to sexual violence.
The first of these instruments is the development of both specific and multi-sectoral care, which integrates legal and judicial assistance into a broader set of medical, psychological and socio-economic services. This holistic model, particularly developed by Dr Denis Mukwege at Panzi Hospital (Bukavu, DRC), allows victims to benefit from comprehensive support and in-depth follow-up, beyond the duration and vicissitudes of legal proceedings. The support provided is in itself a form of reparation and allows each victim to face the pitfalls of the trials under better legal, psychological and material conditions.
In CAR, this holistic approach is implemented, generally only partially, by international or national private actors (including the Association des femmes juristes de Centrafrique), but also by UMIRR, the Unité mixte d'intervention rapide et de répression des violences sexuelles faites aux femmes et aux enfants, created in January 2015 and led by Captain Moyenzo. For the time being, and despite the involvement of the actors involved, the services offered nevertheless often remain incomplete and frequently limited to referrals to other structures, in particular due to a lack of resources and programme continuity. The forthcoming creation of a holistic centre supported by four international partners (the Pierre Fabre Foundation, the Dr Mukwege Foundation, the Panzi Foundation and the Institut francophone pour la justice et la démocratie) as well as national actors, with substantial and sustained material support, will undoubtedly help to provide comprehensive support for victims, including legal and judicial support, although the latter remains dependent on the overall effectiveness of the criminal law system.
The Truth, Justice, Reparation and Reconciliation Commission could be a second instrument available to victims of sexual violence in CAR, in addition to judicial mechanisms. If the law establishing it has not yet been adopted, a Steering Committee for the process leading to its establishment has already been set up (Decree No. 17,323 of 11 September 2017). The Political Agreement for Peace and Reconciliation in the Central African Republic of 6 February 2019 (Khartoum Agreement) has also reinforced its importance and urgency. Popular consultations were also organized on the future Commission in the wake of the accord.
This commission could play a considerable role, as this transitional justice model appears increasingly appropriate for the care of victims of mass sexual violence. First, a TRC may be better able to measure and analyse the collective responsibility surrounding war-time rapes. They constitute mass crimes and are therefore committed and ordered by a plurality of actors and legitimized by societal values. However, the examination of an individual's criminal responsibility for a number of identified facts only marginally raises questions about collective or even social responsibility. Based on the example of Nazi Germany, the German philosopher Karl Jaspers has shown the existence of several forms of guilt -- criminal, political (support for the regime), moral (approval) and "metaphysical" (laissez-faire) -- and that only the first one is the responsibility of the courts.
Not strictly retributive and therefore free from the requirements essential to respect for the rights of the defence, TRCs can offer victims a more benevolent and therefore less traumatic environment. In particular, they can be fully empathetic and respect the triple dimensions of truth (factual, felt and dialogue-related, according to the classification proposed by Alex Boraine), which seems particularly conducive to welcoming and listening to victims of sexual violence.
Finally, the reparations, but also the guarantees of non-repetition included in the TRC reports, can bring victims significant benefits. The damage suffered by victims of sexual violence is particularly severe both materially and socially. They frequently face a dilemma: giving up any care, or receiving some care (never enough) while exposing themselves to a very high risk of family abandonment and social exclusion because of their stigmatization. In both cases, sexual violence seems to result in a significant impoverishment of the victims, due to their exclusion, the physical consequences of rape (injuries, unwanted pregnancy, AIDS, etc.) or the mere fact that they are no longer able (physically or psychologically) to engage in their usual subsistence activities. In the Central African economic and cultural context, isolation and declining incomes can have dramatic consequences.
Even more profoundly, the work of a TRC can help to isolate - with a view to deconstructing them - the factors explaining the commission of wartime rapes, probably based on sexual violence committed before the conflict and generating its upsurge at the end of the conflict. However, this is indeed one of the main challenges in addressing sexual violence: not only to punish its perpetrators, but also and above all to prevent it in the future, and enable girls and women to live in a more equal society.
Jean-Pierre Massias is President of the Francophone Institute for Justice and Democracy (IFJD). Magalie Besse is a Doctor of Law and has been the Director of the Institut Francophone pour la Justice et la Démocratie since 2013.