International Criminal Justice Redux: A New Wave of Hybrid Courts

Originally published on Justice in Conflict as part of the Hybrid Justice – A Justice in Conflict Symposium series.

Harry Hobbs joins JiC for this first instalment in our symposium on Hybrid Justice. Harry is a PhD Candidate at the University of New South Wales, Faculty of Law. He has written on hybrid tribunals and transitional justice for the Leiden Journal of International Law, Chicago Journal of International LawTexas International Law JournalUNSW Law Journal, and Eyes on the ICC.

In 2015, legislation establishing a Special Criminal Court in the Central African Republic was promulgated. That same year, Kosovar lawmakers passed legislation establishing Specialist Chambers comprised of international judges to try members of the Kosovo Liberation Army accused of atrocities against Serbs, Roma, and Kosovo Albanians suspected of collaboration with the Serbian regime. More recently, reports indicate that South Sudan is ‘inch[ing] closer to a hybrid court’, while a committee appointed by the Sri Lankan government last year recommended the appointment of international and local judges to a Court tasked with investigating allegations of war crimes during that country’s civil war.

Not all of these courts have been set-up, but together they constitute a ‘second generation’ of hybrid tribunals. This nomenclature contrasts them with the first generation, which were established in a relatively short-period between 2000 and 2007, including hybrid tribunals for Sierra Leone, Cambodia, and Lebanon, among others.

This post will explore the reasons for the initial emergence of hybrid tribunals, as well as their return. As their re-emergence suggests, many international criminal law practitioners and scholars believe that hybrid tribunals have the potential to make a positive contribution to international criminal justice. Before the second generation of hybrid tribunals fully take flight, however, it is important to critically examine the failures of the first generation.

First generation hybrid courts

Hybrid courts emerged during the late 1990s and early 2000s. Characterised as ‘international criminal justice 3.0’, their development owed much to a peculiar convergence of three factors: 1) wavering international commitment to the sprawling, costly, and lengthy ad hoc tribunals; 2) the absence of a permanent supranational criminal court; and 3) a growing appreciation that states should have primary responsibility to investigate and prosecute international crimes combined with a keen awareness that post-conflict states may not be able to try cases in accordance with international standards.

This may have reflected somewhat of a cynical compromise—allowing international criminal justice to be done on the cheap, or ‘shoestring’—but it meant international criminal justice would incorporate capacity building as one of its aims. As Laura Dickinsonexplained in her foundational 2003 article, hybrid tribunals promised a catalytic transition to normalcy, based on a tripartite grounding of legitimacy, capacity building and norm penetration. In other words, hybrid courts were seen as offering greater potential of embedding societal resilience – that is, compared ad hoc tribunals– hybrid courts were seen as being more likely to heal, reconcile, strengthen, and address the root causes of prior conflict — as well embed the rule of law.

Were they successful? 

The first generation of hybrids succeeded in many areas, including successfully investigating and prosecuting ‘those most responsible’ for a range of international crimes across the globe. Whether or not local courts could or would have tried these individuals at some point in the future, the fact is that the first generation of hybrid courts did, contributing to the closing of the impunity gap.

However, they largely failed to achieve their broader (perhaps unrealisable) promise of capacity building and reconciliation. In many cases, the aspirations placed upon these courts failed to acknowledge the inherent limitations to institutions designed for criminal prosecution. Like all criminal courts, the first generation of hybrid tribunals were not necessarily well placed to foment institutional and social trust throughout and within a divided community. For many practitioners working within these courts, their first – and only – job was to investigate and prosecute.

In other cases, however, the very design of these courts was the cause of critical problems. For instance, as Christopher Sperfeldt has noted in relation to the Extraordinary Chambers in the Courts of Cambodia, while hybrids may create a promising framework, the “transfer of knowledge and the strengthening of local capacities rarely happen automatically”. More considered thinking into the structure of these courts was necessary to attempt to realise their aims.

Recognition that hybrids were not meeting their lofty goals led many to dismiss them. By 2011, Padraig McAuliffe remarked that  “international criminal justice’s golden child”, had become an “orphan”.

Second Generation Hybrid Courts

So what accounts for the resuscitation of hybrid courts? Weren’t they failures? Their re-emergence as a viable option in the international criminal justice toolkit reflects the convergence of both pragmatism and principle. 

Pragmatically, the ICC’s challenges have revealed it to be a limited mechanism for ending impunity. While the animating idea behind the creation of the ICC was to move away from ad hoc courts and towards a permanent system of international criminal justice with universal jurisdiction, the 16 years of the ICC have made clear that this ideal is not yet, if ever, achievable.

The ICC remains weighed down by temporal and territorial limits. Indeed, the majority of the world’s population live in states that have not accepted the Court’s jurisdiction, including the most powerful countries – the US, Russia, and China.

The ICC is also a singular institution of limited size. This means that it simply is not able to open new investigations across the globe as and when relevant situations present themselves. This reality is amplified by political challenges, meaning that the Court must tread carefully before determining whether to open an investigation. Together, these challenges leave a significant gap in the international criminal legal system—something else is necessary.

In designing that ‘something else’, the potential of hybrid tribunals remains tantalising. Many practitioners and scholars remain committed to the view that, notwithstanding the problems with the early hybrids, in principle, there is great value in having the affected community or state more directly involved in the implementation of international criminal justice and that hybrids are uniquely placed to achieve positive results. As Ethel Higonnet explained as early as 2005, ‘in theory at least’ hybrids can harness the credibility of international law and the legitimacy of culturally appropriate institutions lending them a degree of authority as a mechanism for holding perpetrators accountable and altering cycles of impunity by building social trust within the state.

In their structure and operation, their supporters believe that hybrids can solve one of the fundamental challenges of international criminal law – making justice available on a personal level. That is, making justice meaningful to affected individuals and communities.

Challenges going forward

Hybrid justice takes time. For example, the CAR Special Criminal Court is progressing slowly. Despite the legislation establishing the tribunal passing in 2015, several magistrates and the special prosecutor were only finally sworn in, in June last year. We are a long way away from finalising investigations and beginning trials. Such delays suggest that a firm dose of reality is needed in assessing both the re-emergence of hybrid tribunals and considering their potential.

To avoid a replication of their flaws, the experiences of the first generation hybrid tribunals must inform the design and operation of the second generation. While political calculations will remain a key factor in the structural design of all hybrid courts, researchers and practitioners should explain and anticipate the consequences of choices in institutional design. This work should aim to ensure that structural challenges are mitigated, either by institutionally preventing delays, interference, and other internal problems, or by placing greater effort at situating the tribunal externally within a broader transitional justice framework. This work is necessary to ensure not just that international criminal justice redux is effective at prosecuting those responsible, but that it is meaningful for individuals, communities, states, and regions wracked by international crimes.

 

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