As cited in the judgment of the Nuremburg International Military Tribunal, “crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”<fnref n="1" /> This is the most renowned citation from the judgment of the Tribunal and in the decades which have passed since the judgment was handed down, the recognition of the concept of individual criminal responsibility for core international crimes has been significantly reinforced and developed.<fnref n="2" /> Unfortunately, the concept is neither as straightforward nor as single-facetted as might appear at first glance.<fnref n="3" /> While the general principle behind the concept does not generate too many difficulties, it is in its practical application that the more challenging aspects of the concept are brought to the fore.<fnref n="4" />

While there is continued recognition that national accountability mechanisms are in almost all cases the appropriate response to international crimes, it is clear that national proceedings may be problematic. This is true for States whose legislations embody legal impediments such as amnesty provisions, statutes of limitation and immunity provisions. The quest for justice via ordinary courts may also be marred by lack of political will especially when the offenders in question occupy high ranking positions in the State. In addition, States utilising the technique of universal jurisdiction also face considerable challenges most often in the acquisition of evidence and the extradition of suspects to the requesting State.<fnref n="5" /> Where domestic trials face such obstacles, the alternative is the assumption of jurisdiction by an international court to deal with the “most serious offenders.”<fnref n="6" /> The two United Nations ad hoc tribunals of Former Yugoslavia<fnref n="7" /> and Rwanda<fnref n="8" /> have had their own pitfalls. The International Criminal Court (ICC)<fnref n="9" /> is also plagued with several functional predicaments. Amongst others, the Court faces the challenge of engaging the affected local populations, particularly as it is most often located away from the territorial State and the victims.<fnref n="10" /> Moreover, pure international prosecutions do not assist in building capacity within the local legal system.<fnref n="11" /> There is therefore the recurrent need to try perpetrators of atrocity crimes where national courts are either unwilling or unable to carry out prosecutions in accordance with international standards, without necessarily making recourse to international courts<fnref n="12" /> like the ICC.

In recent years, States faced with the commission of large scale atrocities have preferred to neither resort to national nor international criminal courts, but to rather establish courts that are mixed in their composition, statutes and rules which blend aspects of international law and municipal law.<fnref n="13" /> These are criminal courts endowed with national and international features.<fnref n="14" /> In this regard, they can be considered as hybrid or internationalised criminal tribunals.<fnref n="15" /> These tribunals have been established ad hoc with reference to a specific conflict, conferred with limited jurisdiction, and normally seat in the State of commission.<fnref n="16" /> The advent of such tribunals is explained by the fact that the territorial State may not be able to prosecute the crimes owed to a breakdown of the judicial system which might not be capable of administering justice fairly, resulting from prolonged armed conflict.<fnref n="17" />

Aaron Fichtelberg argues that while the border between ‘international’ and ‘domestic’ law has always been somewhat porous, and in many fields outright illusory, nowhere have they been so closely integrated in an institutional form as in these courts.<fnref n="18" /> These hybrid courts have sought to integrate foreign laws and personnel with domestic ones.<fnref n="19" /> This is done by having a portion of the judicial bench with a number of judges coming from outside the country in question, while the remaining judges are recruited from the domestic legal community. This hybridity in the integration of international law and personnel with domestic ones makes these tribunals peculiar in international criminal justice. These courts have the advantage of assuring the local population of genuine trials, thereby involving them in the justice process, ensuring the observance of international standards of justice with the presence of international judges, and strengthening the capacity of the national justice system.<fnref n="20" /> Laura Dickinson posits that these tribunals offer an important process by which societies provide accountability and reconciliation for mass atrocities.<fnref n="21" />

In 2015, the Central African Republic (CAR) established the Special Criminal Court (SCC) to investigate and prosecute serious violations of international humanitarian and human rights law committed within the country’s territory since January 1, 2003.<fnref n="22" /> Given the logistical and financial limitations of the ICC which will only be able to handle a small number of cases, and the weakness of the national judicial system, justice for serious international crimes in the CAR required a more robust response.<fnref n="23" /> The creation of the Court was a positive step by the transitional government to end impunity for grave crimes, a key recommendation from the Bangui National Forum.<fnref n="24" />

The establishment of the SCC intervened at a period when the ICC had received a lot of criticisms from African States, for its perceived bias against African countries, its obstruction of post-conflict reconciliation efforts, limited resources and dependence on State cooperation.<fnref n="25" /> As a key mechanism within CAR’s larger transitional justice framework, the SCC is intended to facilitate progress towards a post-conflict future by providing justice to victims and countering impunity for crimes committed during the country’s recent conflicts.<fnref n="26" /> Such impunity is widely viewed as having undermined prior peace processes and contributed to a cycle of violence, including the resumption of conflict in 2012. This therefore implies that the SCC via the prosecution of the various perpetrators shall act as a forerunner to the peace and reconciliation process in CAR.

Like many recent courts created to prosecute international crimes, the SCC is a hybrid court, meaning that it possesses both domestic and international features. Although the Court is officially part of CAR’s domestic judiciary,<fnref n="27" /> it is staffed by both national and international judges, prosecutors, and administrators; the applicable law includes a mix of domestic CAR law and international norms; and the resources of the Court stem from both national and international sources.<fnref n="28" />

The purpose of this piece is to question whether the SCC is able to achieve justice for those victimized by atrocity crimes resulting from prolonged years of armed conflict which has tainted the country. This shall be done by critically probing into the *Organic Law* and other related instruments such as the *Court’s Rules of Procedure and Evidence* (*RPE*)<fnref n="29" /> and the *Penal Code* of the CAR<fnref n="30" /> to ascertain if it possesses features of both retributive and restorative justice.

While it might seem obvious that international criminal law aims at justifying punishment on the basis of retribution<fnref n="31" /> and deterrence,<fnref n="32" /> it also takes a forward-looking approach to crime tilted towards social justice and the broader goals consisting of the creation of relations and communities of mutuality, respect, peace, equality and harmony<fnref n="33" />. While the former falls within the ambit of punitive justice, the latter falls within the complex approach of restorative justice. In attempting a definition of the latter concept of justice, Daniel Van Ness and Karen Strong highlight three pertinent elements which constitute restorative justice. The first is the encounter approach which according to the authors, in every restorative process, the victim, offender and other interested parties are free to speak and to decide what to do in a relatively informal environment and through that, come to terms with what happened. The second is the reparative approach, which stems from the understanding that “crime causes harm and justice must repair that harm.”<fnref n="34" /> In such circumstances, for justice to be restorative, it should provide some sort of redress to the victims. It is this approach which shall be used to judge the restorative character of the SCC in line with our analysis of the Court. The third is the transformative approach which has to do with mending broken relationships at all levels of society with the view of ensuring harmonious and healthy relationships with others.<fnref n="35" /> In a nutshell, restorative justice is a theory of justice that emphasizes repairing the harm caused or revealed by criminal behaviour. It is best accomplished through cooperative processes that include all stakeholders.<fnref n="36" />

On October 31, 2022, the SCC handed down its first verdict.<fnref n="37" /> The Appeals Chamber of the Court received written submissions from the parties on the appeals that were held in 2023 (from 30 May to 1 June, and on 19 June) during which it received additional submissions from the parties.<fnref n="38" /> The Appeals Chamber handed down its verdict after deciding on the merits of the case on July 20, 2023 reducing the prison sentence of Isaa Sallet to 30 years, while the prison sentences of Ousmane Yaouba and Mahamat Tahir were maintained.<fnref n="39" />

The *Organic Law* that establishes the SCC raises critical questions about the hybridity of its legislation in relation to the objectives of transitional justice. Even when referencing the Court’s RPE, there remain several intricacies that merit analysis. This paper argues that the law establishing the Court is predominantly retributive in nature (I), suggesting that the restorative aspects of the law particularly in terms of reparations to victims are flawed. Nonetheless, the RPE provides a legal framework for reparations, despite some inherent deficiencies (II).

<footnote n="1">*Nuremberg Trial*, (1946) International Military Tribunal, [1946], 22 IMT 203.</footnote>

<footnote n="2">Ciara Damgaard, *Individual Criminal Responsibility for Core International Crimes: Selected Pertinent Issues* (Berlin: Springer, 2008) at 3.</footnote>

<footnote n="3">*Ibid*.</footnote>

<footnote n="4">*Ibid*.</footnote>

<footnote n="5">Nfor N Nde Nyambi, *The Prosecution of International Crimes committed during Internal Armed Conflicts: The Quest for Justice and Reconciliation in Africa* (PhD Dissertation, University of Dschang, 2022) at 200 [unpublished].</footnote>

<footnote n="6">Sarah Williams, *Hybrid and Internationalized Criminal Tribunals: Jurisdictional Issues* (PhD Dissertation, Durham University, 2009) at 30 [unpublished].</footnote>

<footnote n="7">Based on Security Council *Resolution 827*, the ICTY had as power and mandate to both investigate and prosecute individuals responsible for the commission of serious violations of international humanitarian law, namely grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity, committed on the territory of the former Yugoslavia since 1991. Annexed to the Resolution is the Statute of the International Criminal Tribunal for the former Yugoslavia, 25 May 1993.</footnote>

<footnote n="8">*Establishing an international tribunal for Rwanda. Annexed to the Resolution is the Statute of the International Criminal Tribunal for Rwanda*, UNSC, 3453<sup>rd</sup> Sess, UN Doc S/RES/3453/955 (1994), SC Res 3453/955.</footnote>

<footnote n="9">*Rome Statute of the International Criminal Court*, 17 July 1998, 2187 UNTC 38544 [*Rome Statute*].</footnote>

<footnote n="10">Williams, *supra* note 6 at 31.</footnote>

<footnote n="11">*Ibid*.</footnote>

<footnote n="12">Yves Beigbeder, *International Justice against Impunity: Progress and New Challenges*, 2nd ed (Leiden: Martinus Nijhoff Publishers, 2005) at 113.</footnote>

<footnote n="13">Antonio Cassese, *International Criminal Law*(Oxford: Oxford University Press, 2003) at 343.</footnote>

<footnote n="14">Robert Cryer, Darryl Robinson & Sergey Vasiliev, eds, *An Introduction to International Criminal Law and Procedure*, 2nd ed (Cambridge: Cambridge University Press, 2010) at 181.</footnote>

<footnote n="15">Ilias Bantekas and Susan Nash, *International Criminal Law*, 2nd ed (London: Cavendish Publishing Limited, 2003) at 397.</footnote>

<footnote n="16">Florian Jessberger, “International v. National Prosecution of International Crimes”, in Antonio Cassese, ed, *The Oxford Companion to International Criminal Justice* (Oxford: Oxford University Press, 2009) at 210.</footnote>

<footnote n="17">Cassese, *supra* note 13 at 344.</footnote>

<footnote n="18">Aaron Fichtelberg, *Hybrid Tribunals: A Comparative examination* (New York: Springer, 2015) at vii.</footnote>

<footnote n="19">Sarah M H Nouwen, “Hybrid courts: The hybrid category of a new type of international crimes courts” (2006) 2:1 ULR at 193.</footnote>

<footnote n="20">Beigbeder, *supra* note 12 at 113. Also see Etelle R Higonnet, “Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform” (2006) 23:2 AJICL 347.</footnote>

<footnote n="21">Laura A Dickinson, “The Relationship between Hybrid Courts and International Courts: The Case of Kosovo” (2003) 37:1059 New Eng L Rev 1.</footnote>

<footnote n="22">RCA, *Loi Organique n*<sup>o</sup>*15/003 portant création, organisation et fonctionnement de la Cour Pénale Spéciale*, 3 juin 2015, online (pdf): <fidh.org> [perma.cc/UNJ2-YFNX]. The drafting and legislative processes around the law took nine months. In August 2014, the transitional government signed a Memorandum of Understanding with MINUSCA that outlined the hybrid mechanism. The Central African government requested the participation of international staff to bolster the capacities of the national justice system and to protect the court’s independence. On April 22, 2015, the country’s interim parliament, the National Transitional Council, adopted the law by a vast majority. It was promulgated to Law on June 3, 2015.</footnote>

<footnote n="23">Human Rights Watch, “Killing without consequence: War crimes, Crimes against humanity and the Special Criminal Court in the Central African Republic” (5 July 2017) at 75, online (pdf): <hrw.org> [perma.cc/3QUZ-VBMR].</footnote>

<footnote n="24">*Ibid*.</footnote>

<footnote n="25">Robert K Ndiyun, “The Special Criminal Court and the challenge of criminal accountability in the Central African Republic” (2023) 3:147 SN Social Sciences J 2.</footnote>

<footnote n="26">The creation of the SCC was one of the recommendations included in the Republican Pact for Peace, National Reconciliation and Reconstruction in the Central African Republic, a “blue-print for transitional justice” that was adopted during a 2015 national forum of more than 600 stakeholders, including representatives of government and several armed groups.</footnote>

<footnote n="27">RCA,*Loi Organique n*<sup>o</sup>*15/003 portant création, organisation et fonctionnement de la Cour Pénale Spéciale, supra*note 22, art 1 [*SCC Organic Law*].</footnote>

<footnote n="28">*Ibid*, arts 3, 11-15, 18, 52-53.</footnote>

<footnote n="29">RCA, *Loi n*<sup>o</sup>*18/010 portant règlement de procédure et de preuve devant la Cour Pénale Spéciale de la République Centrafricaine*, 2 July 2018, online (pdf): <legal-tools.org> [perma.cc/P9C5-8UAX] [*SCC’s RPE*].</footnote>

<footnote n="30">RCA, *Loi n*<sup>o</sup>*2010/001 portant Code pénal centrafricain* *du 06 janvier 2010* [*RCA Penal Code*].</footnote>

<footnote n="31">“Retribution focuses on the necessity of punishing those who have violated societal norms, on the basis that the offenders deserve punishment for what they have done. Thus, retributive justice demands that those who deserve punishment get it. To deserve punishment, two things are necessary: one must have done a wrongful act and one must have done so culpably”, see Allan Norrie, *Punishment, Responsibility and Justice: A Relational Critique* (Oxford, Oxford University Press, 2000) at 96.</footnote>

<footnote n="32">“In addition to punishing culprits for the wrong they have committed, one of the best known justifications of punishment is to contribute to deterrence. This idea focuses on the future-related benefits of prosecution. It is well-known that punishment ought to be imposed to prevent both the offender and the population more generally from engaging in prohibited conduct. Deterrence may therefore be viewed as a mechanism through which threats of punishment influence individual compliance with moral rules by creating fear of consequences when an individual considers breaching a moral rule in a particular setting”, see Per-Olof H Wikström, “Deterrence and Deterrence Experiences: Preventing Crime through the Threat of Punishment”, in Shlomo G Shoham et al, eds, *International Handbook Of Penology and Criminal Justice* (New York: CRC Press, 2008) at 347.</footnote>

<footnote n="33">Annalise Acorn, *Compulsory Compassion: A Critique of Restorative Justice* (Vancouver: UBC Press, 2004) at 2.</footnote>

<footnote n="34">Daniel W Van Ness & Karen H Strong, *Restoring Justice: An Introduction to Restorative Justice*, 4<sup>th</sup> ed (New Providence: Anderson Publishing, 2010) at 42.</footnote>

<footnote n="35">*Ibid.*</footnote>

<footnote n="36">*Ibid* at 43.</footnote>

<footnote n="37">*Special Prosecutor v Adoum Issa Sallet alias Bozizé et al*, Trial Chamber- 003-2022, Judgment on Sentence Appeal (31 October 2022). The Trial Chamber handed down its judgement against the three defendants. For their participation in the events at Koundjili and Lemouna, the Trial Chamber found them guilty of the crimes against humanity of murder and other inhumane acts and the war crimes of murder and outrages upon personal dignity, in particular humiliating and degrading treatment. The accused Issa Sallet was also found guilty of the crime against humanity and war crime of rape, which occurred in Koundjili, in his capacity as military commander. It sentenced Issa Sallet to life imprisonment and the other two defendants (Ousmane Yaouba and Mahamat Tahir) to twenty years’ imprisonment.</footnote>

<footnote n="38">Special Criminal Court of the Central African Republic, *English Summary of ‘Judgment n*<sup>o</sup>*9 on the appeals against judgment no. 003-2022 of 31 October 2022 of Trial Chamber I*, para 8, online (pdf): <legal-tools.org> [perma.cc/LSZ9-5J2W].</footnote>

<footnote n="39">*Ibid* at 15-17.</footnote>
# II. The Reparative Justifications of the Court

Restorative justice recognizes that prosecutions are required to serve not only punishment of the guilty (retribution) but also must serve the interests of the victims by enabling them to participate in the justice process and to seek reparations.<fnref n="65" /> Reparations are intended to render justice to the victims by publicly acknowledging their suffering, alleviating the damage or harm caused by the wrongful act, preventing and deterring future violations.<fnref n="66" /> Reparations also may contribute to the reintegration of victims, and promote reconciliation between perpetrators and victims and within the society at large.<fnref n="67" /> To meet these aims, courts have observed that reparations must be appropriate, adequate, prompt, and meaningful to the victims, and courts must have flexibility to design reparations that can achieve these goals.<fnref n="68" />

As a key mechanism within CAR’s larger transitional justice framework, the SCC is intended to facilitate progress towards a post-conflict future by providing justice to victims and countering impunity for crimes committed during the country’s recent conflicts. In addition, it is envisioned that the SCC will help remedy the harms victims have suffered and rebuild their lives through the issuance of reparations orders. Reparations are widely viewed as a key element of CAR’s transition to a post-conflict State. In 2015, a report on a series of government-organized public consultations on peace and reconciliation in CAR concluded that justice and reparation for the damages inflicted by years of conflict are a necessary condition to long-term peace.<fnref n="69" /> Reparation measures by their very nature imply a recognition of the crime suffered and the suffering associated with it, and demonstrate an effort by the justice system or the authorities to do the right thing in relation to victims and survivors.<fnref n="70" /> In this regard, probing into the nature of the Court’s reparative mandate (A) is of utmost importance. The RPE of the Court equally anticipates the hurdles which are associated with reparative justice (B).

## A. The Nature of the Court’s Reparations Mandate

The legality of the Court’s power to award reparations is not expressly rooted in its *Organic law* (1). However, this does not make the Court impotent in this regard. The Court’s *RPE* together with the domestic laws of CAR (particularly the *Criminal Procedure Code*) expressly provide for individual and collective reparations drawn from the Civil Law *parties civiles* system. Moreover, the five recognized forms of reparations in international law are rather implicitly recognized when we peruse the applicable laws of the Court (2).

### 1. The impotence of the *Organic Law* on
				the explicit recognition of reparations

The SCC’s *Organic Law* does not explicitly mention reparations, nor does it expressly grant the SCC authority to order reparations. The Court’s *RPE* which were enacted in July 2018 provides that the Court may order both individual and collective reparations for the benefit of victims who were harmed by individuals convicted before the Court.<fnref n="71" />

The authority of the SCC to award reparations is also grounded in the domestic law of the CAR. The *Criminal Procedure Code* recognizes the right of victims to participate as civil parties (*parties civiles*) in criminal proceedings brought by the State against a defendant.<fnref n="72" /> By definition, a civil party claim is a claim for reparations under CAR law<fnref n="73" />. Regardless of that the *Organic Law* does not explicitly provide for reparations, it clearly establishes the SCC’s authority to hear civil party complaints falling within its jurisdiction.<fnref n="74" /> On this basis, civil party actions are plainly permitted in such cases,<fnref n="75" /> and parties who personally and directly suffered harm resulting from these crimes may pursue reparations.<fnref n="76" /> Collectively, CAR’s domestic laws provide authority for the Court to award reparations to victims still based on the civil party system. Moreover, it establishes that crimes falling within the jurisdiction of the SCC are crimes for which civil party complaints may be filed and reparations sought.<fnref n="77" />

Although CAR’s domestic law appears to settle the question of the SCC’s authority to award reparations, additional support for such authority may be found in international law. As noted earlier, Article 3 of the *Organic Law* permits the Court to refer to substantive and procedural international norms where domestic law does not cover a particular issue or where there is uncertainty concerning the interpretation or application of CAR’s law or procedure. The recognition of reparations authority in the SCC is consistent with the evolving practice of international courts.

### 2. The inferred recognition of the international forms of reparations

Reparations constitute an obligation under international law.<fnref n="78" /> The notion of reparations is tied to issues of responsibility. At the broadest level, reparations are intended as a means of bringing justice to victims.<fnref n="79" /> It is widely accepted as a principle of State responsibility under customary international law.<fnref n="80" />

International law recognizes five forms of reparations: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.<fnref n="81" /> The SCC’s *RPE* does not expressly mention these five forms of reparations. Nevertheless, there is an implicit form of recognition from a broad interpretation. Article 129 of the *RPE* authorizes the Court to take ‘any’ reparations measure that is appropriate to remedy the nature and gravity of the harms experienced by civil parties. It further recognizes a range of reparations the SCC may award, from medical and psychological care to educational programs, to the creation of funding mechanisms to develop agriculture or industry.

Although the SCC’s *RPE* does not explicitly mention each of the five international forms of reparations, the examples included in article 129 falls within several of these categories, implicitly endorsing the SCC’s ability to award these types of reparations.<fnref n="82" /> Interpreting the Court’s authority to consist all five forms of reparations is in line with similar interpretations at other international criminal mechanisms. For instance, the Rome Statute generally authorizes the ICC to award reparations, but expressly mentions restitution, compensation, and rehabilitation.<fnref n="83" /> Nonetheless, based on judicial interpretations, the Court considers Article 75 as non-exhaustive, thus possessing the authority to award other forms of reparations namely measures of satisfaction and guarantees of non-repetition.<fnref n="84" /> This interpretation is also consistent with CAR’s domestic law which establishes that a civil action may request reparations for “all forms of damage” caused by the crime, including but not limited to bodily injury, moral harm, and property damage<fnref n="85" />.

On June 16, 2023,<fnref n="86" /> the SCC addressed various civil claims arising from crimes committed by the defendants. The Court rejected several procedural requests, including a stay of proceedings and claims of foreclosure. It accepted calls for reparations from multiple victims and awarded substantial reparations to victims and their heirs, with compensation ranging from 200,000 to 1,000,000 CFA francs. Key decisions included granting requests for the construction of historical monuments and wells in the affected villages, while rejecting claims for a health center, training center, law enforcement installation, and other infrastructural demands. The Court acknowledged the indigence of the defendants, directing the clerk to seek external funding for victim assistance.

On October, 23, 2023,<fnref n="87" /> the Appeals Chamber ruled on the case involving reparation measures for victims of the May 21, 2019, attacks in Koundjili and Lemouna stemming from the June 16th judgement. The Court declared the applications of reparations for certain victims admissible, while rejecting others. Issa Sallet Adoum (alias Bozizé), Ousman Yaouba, and Mahamat Tahir were ordered to pay individual reparations to specific victims, including financial compensation and approval for participation in a victim support project. Additionally, symbolic collective reparations were granted to the families of those killed in the attacks. The Court assigned a reporting judge to oversee the implementation of these measures and rejected the remaining reparation requests, reserving the costs.

On March 25, 2024, the Appeals Chamber of the SCC rejected a request for collective reparations in the form of a memorial or historical project, initially addressed in *Ruling N*<sup>o</sup>*13*<fnref n="88" /> (October 23, 2023).<fnref n="89" /> Following consultations with the victims of Lemouna and Koundjili, it was determined that almost all victims opposed the creation of such a memorial, citing cultural beliefs and fears that it would bring misfortune. The Chamber emphasized that reparations must adhere to key principles: voluntary participation, informed consent of the victims, and the avoidance of any form of stigmatization or harm to the victims. Additionally, it reaffirmed the continuation of individual and symbolic reparations already granted, with the Service for Victims and Defense required to report on their execution.

## C. Anticipating the Mess Correlated with Reparations

Awarding reparations in cases of core international crimes raises unique challenges as it is not easily implemented as conceived. By their gravity, atrocity crimes are generally mass crimes with hundreds or even thousands of victims, most of whom have suffered devastating losses.<fnref n="90" /> As a result, the resources available for reparations which traditionally are borne by the convicted defendants are almost certain to be inadequate to repair the harms caused, even if the defendants are not indigent.<fnref n="91" />

The SCC via its *RPE* acknowledges and addresses these predicaments by explicitly anticipating that some defendants will be indigent or unable to completely cover the cost of reparations ordered, and permits the Court’s victims’ service to solicit external funding in such instances<fnref n="92" />. In addition, the rules permit the Court to order a wide variety of reparations measures adapted to the needs of the victims, including measures typically undertaken by States or non-governmental organizations (NGOs) rather than individuals.<fnref n="93" /> In deciding on how to curb these hurdles and effectively render reparative justice, the Court may utilize the approaches of ordering reparations against the State (the CAR), establishing a Trust Fund and getting into project partnerships.

Firstly, as a hybrid court within the judicial system of CAR, the SCC may have the ability to order reparations against the State. The Court functions like a domestic court in a number of ways, most importantly, its ability to hear civil party claims for reparations and its ability to apply domestic law. Although neither the *Organic Law* nor the *RPE* mentions the issue of reparations orders against the State, the RPE provide examples of reparations measures that are almost certain to require resources well beyond those of individual defendants, such as the institution of a fund for agricultural development or the implementation of educational programs. Indeed, the *RPE* acknowledges that additional funds are likely to be required, and explicitly authorizes the Court to solicit external funds for such purposes.

The second approach to financing and realizing reparation orders is by establishing a trust fund which was created at both the Extraordinary African Chambers (EAC)<fnref n="94" /> and the ICC<fnref n="95" /> to implement the Courts’ reparation mandate. Although no trust fund currently exists for the SCC, the Court is authorized to solicit donations where a convicted person is indigent or has insufficient funds to cover the reparations ordered. The Court will need a structure to solicit, manage, and use such funds, and a trust fund could be established within the existing structures such as within the *service d’aide aux victimes et à la defense* for this purpose.<fnref n="96" /> Even if the Court chooses not to create a formal fund, lessons learned from trust funds may be useful as the Court ponders on how to solicit and manage external funding for reparations.

Thirdly, the SCC may use the approach of financing and implementing reparations via project partnerships. Such an approach was harnessed by the Extraordinary Chambers in the Courts of Cambodia (ECCC). As anticipated, the ECCC recognized that victims were unlikely to receive reparations through the ‘traditional’ awards against Khmer Rouge offenders, all of whom appeared to be indigent. In search for an antidote to this predicament, the Court amended its internal rules to create “a new and independent avenue for reparations.”<fnref n="97" /> In this model, NGOs, civil society actors, and in some cases the government (collectively partners) propose, design and implement projects intended to meet some of the reparations needs of survivors, with funding from a mix of individual, corporate, and international donors. In this light, there is thus no reparations order against the defendant; instead, the Court endorses projects to be undertaken by different actors. Although this approach is unquestionably helpful, placing the design and fundraising process in the hands of partners rather than the Court inevitably means that the project prioritization process will be influenced by the partners’ and funders’ priorities as well. Although the SCC does not have the power to execute reparations orders via this approach, it could amend its *RPE* to accommodate this mode of financing and implementing reparations. This will go a long way to gear the Court’s reparations mandate because most if not all of the offenders will be indigent.

<footnote n="65">War Crimes Research Office, *Case-based reparations at the Central African Republic’s Special Criminal Court*, December 2019 at 8, online (pdf): <american.edu> [perma.cc/CRF2-K99R].</footnote>

<footnote n="66">See *Prosecutor v Katanga*, ICC-01/04-01/07, ICC Trial Chamber II, Order for Reparations pursuant to Article 75 of the Statute (24 March 2017) at paras 15 & 267.</footnote>

<footnote n="67">*Prosecutor v Lubanga*, ICC-01/04-01/06, ICC Trial Chamber I, Decision establishing the principles and procedures to be applied to reparations, (7 August 2012) at para 28.</footnote>

<footnote n="68">*Ibid.*</footnote>

<footnote n="69">République Centrafricaine, Ministère de la Réconciliation Nationale et du Dialogue Politique, *Rapport des Consultations Populaires à la Base en République Centrafricaine* (Bangui: Ministère de la réconciliation nationale et du dialogue politique, 2015) at 8.</footnote>

<footnote n="70">FIDH, *What prospects for justice in the Central African Republic? Complementarity between national and international mechanisms: status and challenges* (3 October 2022) at 47.</footnote>

<footnote n="71">*SCC’s RPE*, *supra* note 29, art 129. Art 47 authorizes the creation of a victims defence and assistance office “*un service d’aide aux victimes et à la défense*” within the Registry tasked, among other things, with developing guidelines for determining appropriate forms of reparation (see *ibid*, s 47, para B (d)).</footnote>

<footnote n="72">RCA, *Loi n*<sup>o</sup>*10.002 portant Code de Procédure Pénale Centrafricain* (6 January 2010), art 3 provides that: “*L’action civile peut être exercée en même temps que l’action publique et devant la même juridiction.*”</footnote>

<footnote n="73">*Ibid*, art 2 provides: “*L’action civile en reparation du dommage causé par un crime, un délit, ou une contravention, appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l’infraction.*”</footnote>

<footnote n="74">*SCC Organic Law*, *supra* note 27, art 40. “*Les Cabinets d’Instruction sont également saisis des faits entrant dans la compétence de la Cour Pénale Spéciale par la plainte, avec constitution de partie civile, de toute personne qui s’estime lésée par l’infraction. Toutefois, dans l’intérêt de la manifestation de la vérité et de la lutte contre l’impunité, les parties civiles ainsi constituées sont dispensées des frais ordinairement générés par ce mode de saisine du juge d’instruction*.”</footnote>

<footnote n="75">*RCA Penal Code*, *supra* note 30, art 162 establishes that civil actions are specifically permissible in cases of genocide, war crimes, and crimes against humanity. (“*L’action publique relative aux crimes prévus par les sections I, II et III du présent titre ainsi que l’action civile et les peines prononcées sont imprescriptibles. Les crimes ci-dessus cités ne peuvent faire l’objet d’amnistie ou de grâce. Toute immunité relevant du statut national est inopposable*”).</footnote>

<footnote n="76">The Central African Constitution also provides that victims of particular crimes, including torture, rape, and cruel, inhumane, degrading or humiliating acts or treatment and crimes which may rise to the level of crimes against humanity, war crimes, or genocide where the other requirements of those crimes are met have a constitutional right to reparations. See *Constitution de la République Centrafricaine* (30 March 2016), art 3, 21; RCA, *Décret n*<sup>o</sup>*04.392 portant promulgation de la Constitution de la République Centrafricaine* (27 December 2004), art 3, 17. While these are State obligations not applicable to individual criminal responsibility, these provisions nonetheless corroborates that the Central African’s domestic law supports the right to reparations for victims of genocide, war crimes, or crimes against humanity.</footnote>

<footnote n="77">*SCC Organic Law*, *supra* note 27, art 40.</footnote>

<footnote n="78">*Factory at Chorzow (Germany v Poland)* (1927), PCIJ (Ser A) N<sup>o</sup> 9 at 21.</footnote>

<footnote n="79">Kelli Muddell and Sibiley Hawkins, *Gender and Transitional Justice, International Centre of Transitional Justice*, October 2018 at 11, online (pdf): <justiceresources-mm.com> [perma.cc/TD65-3HSD].</footnote>

<footnote n="80">See *Draft Articles on Responsibility of States for Internationally Wrongful Acts* (2001), art 31.</footnote>

<footnote n="81">*Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law*, UNGA, 16<sup>th</sup> sess, UN Doc A/RES/60/147 (2005). On the five forms of reparations, it is worth reading from principles 18—23 of the *Resolution* as follows:</footnote>

<footnote n="82">For instance art 129(B) talks of “mesures de soins médicaux et psychologiques” which would constitute rehabilitation.</footnote>

<footnote n="83">*Rome Statute*,*supra* note 9, art 75.</footnote>

<footnote n="84">See *Prosecutor v al Mahdi*, ICC-01/12-01/15, ICC Trial Chamber VIII, Reparations Order (17 August 2017) at paras 46, 67, 71 (describing the list in article 75 as “non-exhaustive” and ordering measures of satisfaction and non-repetition); see also *Prosecutor v Lubanga*, Decision establishing the principles and procedures to be applied to reparations, ICC-01/04-01/06, ICC Trial Chamber I (7 August 2012) at para 222 (observing that the list of reparations in article 75 of the Rome Statute “is not exclusive” and that “other types of reparations […] may also be appropriate”); *Prosecutor v Lubanga*, Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations” of 7 August 2012, ICC-01/04-01/06, ICC Appeals Chamber (3 March 2015) at para 34 (observing that “reparations are not limited to restitution, compensation and rehabilitation, as listed in article 75 of the Statute”).</footnote>

<footnote n="85">RCA,*Loi n*<sup>o</sup>*10.002 portant code de procédure pénale centrafricain*, 6 janvier 2010. Art 3 provides that “L’action civile peut être exercée en même temps que l’action publique et devant la même juridiction. Elle est recevable pour tous chefs de dommages aussi bien matériels que corporels ou moraux, qui découleront des faits, objets de la poursuite”.</footnote>

<footnote n="86">*Le Parquet Spécial c Issa Sallet Adoum alias Bozize et al*, CPS/C.ASS/1SA/22-001, Résumé Jugement n<sup>o</sup>001-2023 sur les Intérêts Civils dans l’Affaire Parquet Special contre Issa Sallet Adoum et Consorts (16 June 2023).</footnote>

<footnote n="87">*Le Parquet Spécial c Issa Sallet Adoum alias Bozizé et al*, l’arrêt n<sup>o</sup> 13 relatif à l’appel interjeté contre le jugement n<sup>o</sup> 001-2023 du 16 juin 2023 de la Première Section d’Assises (23 Octobre 2023) [*Ruling N*<sup>o</sup>*13*].</footnote>

<footnote n="88">*Ibid*.</footnote>

<footnote n="89">*Le Parquet Spécial c Issa Sallet Adoum alias Bozizé et al,*Arrêt n<sup>o</sup>2 relatif à une demande de réparation collective sous forme de projet mémoriel (25 March 2024).</footnote>

<footnote n="90">War Crimes Research Office, *supra*note 65 at 36.</footnote>

<footnote n="91">*Ibid.*</footnote>

<footnote n="92">*SCC RPE*, *supra* note 29, arts 47(B)(D), 129(D).</footnote>

<footnote n="93">*Ibid*, art 129(B).</footnote>

<footnote n="94">*Statute of the Extraordinary African Chambers within the courts of Senegal created to prosecute international crimes committed in Chad between 7 June 1982 and 1 December 1990*, art 28 [*Statute of the EAC*]. It provides as follows:</footnote>

<footnote n="95">*Rome Statute*, *supra* note 9, art 79. It provides as follows:</footnote>

<footnote n="96">*SCC RPE*, *supra* note 29, art 129(D) (the “*service d’aide aux victimes et à la defense*” (the victims and defence office) is charged with soliciting external funds).</footnote>

<footnote n="97">*Initial specification of the substance of reparations awards sought by the Civil Party Lead Co-Lawyers pursuant to Internal Rule 23 quinquies(3)*, ECCC Trial Chamber President, 23 September 2011 at 2, online (pdf): <eccc.gov.kh> [perma.cc/HZ8H-QQQW].</footnote>
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The SCC has been mandated to end impunity in the CAR, promote accountability, break the cycle of violence, and achieve sustained peace and national reconciliation. The Court’s architecture is well framed with mixed personnel to enhance its legitimacy and impartiality before the population who have desired domestic justice. The Court reflects the resolve of the international community and the CAR government to reject impunity and is a symbol of lessons learnt from previous experiences of hybrid tribunals. The success of the Court in achieving accountability for international crimes lies mainly on the current and future efforts, including the goodwill, the willingness and the commitment of both the CAR government and the international community in not relenting in their quest for justice. Despite its snail-paced activities, the Court has successfully handed down its first verdict, giving hopes of justice to those victimized by egregious human rights violations. The core values of impartiality and independence are essential to the Court’s success. In this regard, it is essential to investigate and prosecute the financiers, instigators and rebel group leaders who are the principal culprits of the violence and atrocities in the CAR.

This research demonstrates that the mandate of the Court is both punitive and restorative. To fulfill its restorative objectives, the Court is entrusted with a reparative mandate aimed at providing reparations to victims who have endured years of armed conflict that have left a deep scar on the country. The *RPE* grant the Court flexibility to award such reparations and explore alternative financing methods, though they do not specify the exact processes for doing so. Regardless of the approach the SCC chooses, establishing and implementing an effective reparations mechanism will almost certainly require the adoption of new policies, the creation of additional institutional structures, and coordination with external partners, processes that will demand significant time and resources. This paper recommends that, while the SCC has made progress in providing reparations, its ability to fully realize restorative justice is constrained by financial limitations and procedural hurdles. Early preparation for reparations is crucial to ensure the effective implementation and enforcement of reparations orders once issued. It is our sincere hope that this article will serve as a valuable resource to the Court, civil society organizations, and survivors, as the Court continues to address and manoeuver the challenges of reparative justice.