As the Pendulum Swings – The Revival of the Hybrid Tribunal (New Paper!)

Inspired by M.C. Escher.

A fascinating trend in international criminal justice, one that contributors at JiC have covered over the last few months and years, has been the re-emergence of hybrid tribunals. Back in January 2016, I wrote about the evident ‘rebirth’ of hybrid courts following their long hibernation. With Kirsten Ainley of the London School of Economics, and the Wayamo Foundation (where I work as Director or Research), I am also working on a project to study hybrid tribunals and to generate guidelines for the establishment of new hybrid courts in the future (see our project website here).

In this context, I wanted to share with readers a book chapter that I have written for a volume edited by Mikkel Jarle Christensen and Ron Levi entitled “Internationalizing Criminal Law: Institutions, Elites and Practices” (Routledge 2017).  Below is the introduction to my contribution. The draft paper can be found here.

Reflecting on his six years as U.S. Ambassador-at-Large for War Crimes Issues, Stephen Rapp recently concluded that “there isn’t a global system of justice, just some cases in The Hague and a few other places.” Rapp’s assessment likely comes as a surprise to many proponents of international criminal justice. The 2002 establishment of the permanent International Criminal Court (ICC) was intended to entrench and consolidate a global system of international criminal law which had, until then, been piecemeal and unstable. A series of prior, ad hoc war crimes tribunals, such as the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Special Court for Sierra Leone (SCSL), relied on the periodic and sporadic confluence of political interest and will to permit their establishment and functioning. They each focused on specific theatres of mass atrocity and were restricted to examining crimes perpetrated in particular windows in time. In sharp contrast, the ICC was intended to be a “world court”, a promise of universal justice, and thus a provider of a permanent, reliable and consistent response to international crimes irrespective of where they occurred. As then-United Nations Secretary General Kofi Annan declared at the conclusion of the Rome Statute negotiations: “The establishment of the Court is still a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law. It is an achievement which, only a few years ago, nobody would have thought possible.” According to Human Rights Watch, the ICC represented a promise to “transform the human rights landscape”; it demonstrated that “the international community of states [had] agreed… to embrace this essential institution for bringing the world’s worst human rights criminals to justice.”

The ICC was seen as a means to replace a fragmented approach to international criminal justice with a permanent system of global accountability. Yet renewed interest in establishing hybrid tribunals, evident by the remarkable uptick in the number that have been created over last two years, suggests that this is far from the case. There is still a place for hybrid courts as part of the international criminal justice network

This chapter examines the recent resurgence of hybrid tribunals and seeks to explain why they have ‘returned’ as a viable model of international criminal justice. It proceeds as follows. The first section of the chapter briefly defines and describes hybrid tribunals before illustrating the resurgence in their use since 2015. A number of recently established and proposed hybrid courts are outlined. The second section of the chapter seeks to explain the reasons behind the ‘rebirth’ of hybrid tribunals. It situates their reemergence amidst the confluence of three broad factors: the increasingly evident limitations of the ICC; the waning view that the Court must be the only purveyor of international criminal justice; and the ongoing utility of hybrid tribunals. The chapter then argues, in section three, that hybrid courts should form an important part of a ‘network’ of international criminal justice alongside, rather than in competition with, the ICC or domestic judiciaries. The section also offers the creation of a permanent hybrid tribunal as a means to consolidate such a network of global justice. Finally, the chapter concludes by arguing that the revival of hybrid tribunals is unlikely to be ad hoc and that, even if they eventually fall out of fashion again, proponents of international criminal justice would do well to study and understand their benefits and advantages.

It should be stressed that the chapter should not be read as an argument in favour or against hybrid courts as such. It is, rather, intended to offer an explanation of their re-emergence as well as to propose that, in the absence of a consolidated system of global justice, a stronger network of international can and should be constructed around both hybrid tribunals as well as the ICC.

If you’d like to access and read the article in full, please click here. I would love your feedback and thoughts!

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Academic Articles / Books, Ad hoc tribunals, Central African Republic (CAR), Hybrid Court for South Sudan, Hybrid Courts, Hybrid Tribunals, Kosovo, Kosovo Liberation Army (KLA), Kosovo Relocated Specialist Judicial Institution (KRSJI), South Sudan. Bookmark the permalink.

8 Responses to As the Pendulum Swings – The Revival of the Hybrid Tribunal (New Paper!)

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