Reconciling peace and justice is inherently fraught, and surely nowhere more so than in the Central African Republic (CAR) - that seemingly chronic cancer in Africa's belly.
The CAR's Special Criminal Court was established by law in 2015 to try grave crimes committed during the country's armed conflicts since 2005. It officially came into operation only last year and is still far from becoming fully functional. No charges have yet been laid or arrests made.
Nothing illustrates the peace-versus-justice dilemma more than the inclusion in government of leaders from three of the many armed groups tormenting the country. They are now special military advisers in the prime minister's office. This was one of the provisions of the February peace accord signed in Khartoum. Fighters under one of those advisers, Sidiki Abass, allegedly killed over 50 civilians in the north-west of the country in May, according to a new Human Rights Watch (HRW) report.
Human rights defenders and victims expressed concerns that the vague commitment to justice in that peace accord could limit government support of the Special Criminal Court. It's hard to imagine Abass or the other two rebel leaders now in government being arrested and brought to court.
Three armed group leaders are now special military advisers to the CAR prime minister's office
In many other ways too, the HRW report paints an alarming picture of justice as an embattled outpost in the midst of war. Despite the February peace accord, the civil warfare that erupted again in 2012 continues in many parts of the country.
The fighting started when Séléka rebels marched on the capital Bangui and toppled François Bozizé's corrupt government the following March. The mainly Muslim Séléka and a rival mainly Christian militia called anti-Baleka committed numberless atrocities, including murder, rape and assault, against members of rival communities. Later other armed groups sprung up.
Conducting investigations and seeking justice in an environment of such instability obviously presents challenges. As the report notes, United Nations peacekeepers are often needed to protect investigators as they range beyond Bangui to gather evidence. But that makes it difficult for investigators to operate discreetly, which is important to reduce risks to potential witnesses. This restricted access also suggests that the court may only be able to dispense justice selectively to those perpetrators it can reach.
One human rights defender told HRW: 'The major difficulty is that the victims and the tormentors live in the same neighborhood. It takes tremendous courage for the victims to dare to bring a complaint and turn to justice. We must have the protection of witnesses so that they can testify without fearing for their lives.' Yet witness and victim protection programmes barely exist, because of the lack of staff, logistics and psycho-social support.
The CAR government's priority seems to be peace first through a truth and reconciliation commission
The special court has a funding gap of about US$1 million for 2019 operations, and no funds pledged for future years of operations, which are expected to cost some US$12.4m a year. These tremendous obstacles to establishing a court in a warzone inevitably raise the question of whether it wouldn't have been better to stabilise the country before seeking justice.
Elise Keppler, HRW associate international justice director, says, 'Central Africans have waited so long to see justice for the many killings, rapes, and other atrocities committed in the Central African Republic. The Special Criminal Court holds promise but it's had a slow start and needs to intensify investigations so trials can be initiated based on strong, compelling evidence.'
'The Special Criminal Court emerged out of the strong, unequivocal desire on the part of Central Africans to break cycles of violence and impunity in the country,' Keppler said.
In the CAR government, the priority seems to be to seek peace first through a truth, reparation and reconciliation commission, meant to be established alongside the special court.
The court has a funding gap of about US$1 million for 2019, and no funds pledged for the future
Institute for Security Studies senior researcher Allan Ngari believes in principle in seeking justice even before peace has completely been achieved. Advocating for peace before justice is often a cop-out by governments, he says, deploring the integration of people who have committed serious crimes into government on the basis that peace must precede justice.
'There is little evidence, if at all, to show that placing peace initiatives ahead of justice has averted conflict or assisted post-conflict reconstruction,' Ngari says. He says beyond resource challenges, there seems to be little political will to get the special court or the truth, reparation and reconciliation commission up and running.
Ngari says neither can address the country's systemic governance problems. 'Glossing over these issues by setting up weakened institutions won't effectively deal with the CAR's past. The unresolved past is what causes the recurrence of violence.'
Kenyan President Uhuru Kenyatta and his deputy William Ruto's moves to evade the International Criminal Court (ICC) should be a warning to the CAR about the dangers of trying to pursue justice against serving members of government. While pretending to cooperate with the court, these two leaders exploited their political power to get rid of witnesses or buy their silence, undermining the ICC case so that it eventually collapsed.
The example of rebel leader Bosco Ntaganda in the Democratic Republic of the Congo is more encouraging. He cooperated with the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) while under indictment by the ICC. Years later, when he was no longer politically useful, the ICC caught up with him and he was arrested, tried and convicted.
If justice is to be attained in the CAR, it's going to be a long, difficult and expensive game. The international community should step up and provide the special court with the financial and other resources it needs.
The court took a huge risk establishing itself in the CAR. But HRW believes the people of the CAR feel the risk is worth taking. One victim explained: 'We trust in the Special Criminal Court because it is the national justice, it is based here and knows the perpetrators.'
A heroic endeavour and one that will surely test to the limits the belief of human rights defenders that justice matters as much for peace, as peace does to justice.
Peter Fabricius, ISS Consultant