International criminal justice is an emerging marketplace. It has a diversity of stakeholders, different ‘business’ models, and is based, like all markets, on supply and demand — although demand clearly and vastly outstrips supply. Something of a political economy of international criminal justice is developing and a growing number of observers and scholars are concluding that no tribunal type can or should have a monopoly over the provision of international accountability.
In this context, I have recently written about renewed interest of hybrid international criminal tribunals. In broad terms, such tribunals (as well as ad hoc courts more generally) have been justified on the basis that they can act as stop-gaps for the short-comings of the International Criminal Court (ICC). Because the ICC can’t be everywhere it is needed, we need to explore alternatives. This is undoubtedly true. But in thinking through a marketplace of international criminal justice, is it useful to create a pecking-order of tribunal types that views the ICC as its apex and other courts as second best options? I’m less and less convinced.
There is no cookie-cutter concept of what a hybrid tribunal should look like. As Sarah Williams has written:
While there is no definition, such tribunals tend to apply a mix of national and international law (both procedural and substantive) and feature a blend of international and national elements, in particular international and national judges and personnel. While there is some disagreement as to those institutions that are properly considered hybrid or internationalized, the following tribunals are generally included in this category: the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Panels for Serious Crimes in Timor Leste (SPSC), the International Judges and Prosecutors Program in Kosovo (IJPP, or Regulation 64 Panels), the War Crimes Chamber in the State Court of Bosnia and Herzegovina (WCC), and the Special Tribunal for Lebanon (STL).
The above excerpt and list of hybrid tribunals was published in April 2014. The most recently created tribunal Williams lists is the Special Tribunal for Lebanon, established in 2009 to prosecute those responsible for the terrorist attack in Beirut that killed then Prime Minister Rafic Hariri and twenty-two others.
Fast-forward just two years from Williams’ observations and the proof of the hybrid tribunals’ rebirth is in the pudding. According to Beth Van Schaack, a professor of international law at Santa Clara and a former Deputy U.S. Ambassador-At-Large for War Crimes Issues,
the international community in 2015 considered new hybrid accountability mechanisms for a range of historical and current atrocity situations, including Syria, the Central African Republic (CAR), the Democratic Republic of Congo (DRC), Colombia, Sri Lanka, Chad, Kosovo, and even the July 2014 downing of Malaysian Air Flight 17 over rebel-controlled Ukraine.
In other words, the international community considered creating eight additional hybrid tribunals. If all came to fruition, the number of hybrid tribunals established to date would rise by 133%. But why this sudden surge of interest in hybrid tribunals?
The preponderant reasoning, as suggested above, is that members of the international community are looking for alternatives to the ICC because the Court, for a host of reasons both in and out of its control, hasn’t lived up to its promise to be the institution that puts an end to global impunity. The Court’s jurisdictional reach is limited, it is often used by states but subsequently abandoned, and it is often excessively cautious and selective when it does get the green light to investigate mass atrocities. As Van Schaack writes,
Originally envisioned as a standing institution that would obviate the need for new ad hoc courts, it is now clear that the ICC cannot handle all of the atrocity situations ravaging our planet. As such, there is an enduring need for the international community to create, enable, and support additional accountability mechanisms to respond to the commission of international crimes when the political will for an ICC referral is lacking, the ICC is inappropriate or foreclosed for whatever reason, or only a fraction of the abuses or perpetrators in question are before the ICC.
This certainly rings true for the most recent hybrid tribunal, the so-called Kosovo Relocated Specialist Judicial Institution (KRSJI), a clearly hybrid form of a hybrid tribunal set up to investigate and prosecute alleged crimes perpetrated by the Kosovo Liberation Army from 1999-2000. The special court will be located in The Hague due to the sensitivity of investigating and prosecuting alleged perpetrators who now enjoy significant political power. Moreover, the crimes under its purview lie outside the temporal jurisdiction of the ICC.
In a recent post in which I argued for the establishment of a permanent hybrid tribunal, I put a similar argument forward: that other tribunal types should fill in the gaps or otherwise complement the ICC. I still believe that to be true. But perhaps we should think of hybrid tribunals as more than just “necessary evils” or a “good but second best option” to the ICC. After all, for many if not most of the world’s communities facing mass rights abuses, an ad hoc or hybrid tribunal, and not the ICC, may be their best bet for achieving any kind of justice and accountability. And who among us justice observers is willing to tell those victims and survivors that they’re getting lesser quality justice from a hybrid or ad hoc tribunal because the ICC is unavailable? Would that even necessarily be true? We would certainly never make such a claim for a domestic judicial system. In fact, we would celebrate its interest in investigating and prosecuting crimes and ring it up as a success of the ICC and its galvanizing “positive complementarity” regime.
This isn’t to say that hybrid tribunals are always a better option that the ICC or an ad hoc tribunal; they most certainly are not. Like all institutions, hybrid courts suffer from flaws that undermine their ability to achieve independent and impartial justice. In particular, because they are the product of negotiations between domestic actors and members of the international community, hybrid tribunals seem particularly susceptible to political influence, bias and selectivity. Still, the point, which I have admittedly come to belatedly, is that we should embrace the growing marketplace of international criminal justice but avoid reifying a hierarchy of tribunal types. Once again, the ultimate goal should be to establish a healthy and sustainable system of global justice.