International Criminal Justice Redux: A New Wave of Hybrid Courts

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 Law, Texas International Law Journal, UNSW Law Journal, and Eyes on the ICC.

The “Newborn” display in Pristina, Kosovo. Alleged atrocities committed by the Kosovo Liberation Army are currently under investigation at a new hybrid court based in The Hague (Photo: Marco Fieber, Creative Commons)

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 Dickinson explained 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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About Mark Kersten

Mark Kersten is the the Deputy Director of the Wayamo Foundation and a Fellow based at the Munk School of Global Affairs, University of Toronto. 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). The views posted on this blog do not necessarily represent those of the Wayamo Foundation.
This entry was posted in Central African Republic (CAR), Guest Posts, Hybrid Court for South Sudan, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals, Kosovo, Kosovo Liberation Army (KLA), Kosovo Relocated Specialist Judicial Institution (KRSJI), South Sudan. Bookmark the permalink.

4 Responses to International Criminal Justice Redux: A New Wave of Hybrid Courts

  1. el roam says:

    Thanks for that post, with all due respect , I strongly disagree :

    International justice ( in criminal terms ) consists philosophically of both concepts :

    The primary one , is that the state , is unwilling or unable to prosecute perpetrators ( impunity ) . The second ( and secondary one ) is the gravity and seriousness of the crimes , that are so extreme , that it does touch the International community as a whole .

    As such , and like the philosophy of every court in fact , the court , should and must be independent , and totally so . National political local actors , can’t influence the decision making of the court ( as in a national one theoretically ) . Typically , there are considerations and discretion has to do with transitional justice , but up to the limit of ” jus cogens ” !! Means : No reservations , no justification , no circumstances , nothing can justify such crimes of that sort of ” jus cogens ” ( Prima facie so , like genocide and crimes against humanity , and see article 33 ( 2 ) to the Rome statute ) .

    Can it be said , that such hybrid court , are totally independent ?? totally uninfluenced by local political actors or political discretion ?? The answer is pretty clear , no !!

    On the other hand , The meaning , deriving from the above philosophy , is that such court , must have Universal jurisdiction ( for it is a matter of the International community as a whole ) . Only the ICC , can have it in both meaning :

    Being totally independent , and having Universal jurisdiction . So , the issue is the Rome statute ( recklessly drafted and organized ) and on the other hand :

    The Security council , that must be reformed , to eliminate the super power , exercising the veto right , so , every possible case , shall be referred to the ICC by the SC ( article 13 to the Rome statute ) achieving so complete Universal jurisdiction .

    So , the effective problems are those two :

    The ICC is a treaty based court (apparently), and , the veto power in the SC ( eliminating so , total Universal jurisdiction by aborting potential reference to the ICC ) .

    The solution then , is not Hybrid court , but fixing the flaws of the current system .

    See here link , more and more awareness of state members in the UN , for that flaw in the SC , and calling and stressing for such reform in the SC as mentioned , here :

    https://news.un.org/en/story/2016/09/539742-addressing-un-assembly-prime-minister-new-zealand-stresses-urgency-security

    Thanks

  2. el roam says:

    Just correction to my comment above :
    Potential referral , and not ” potential reference ” of course .
    Thanks

  3. Pingback: International Criminal Justice Redux: A New Wave of Hybrid Courts – Jehtro Lewis – Blog

  4. Pingback: Hybrid Justice: A Justice in Conflict Symposium – Hybrid Justice

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