Shannon Maree Torrens joins JiC for the third post in our ongoing symposium on Hybrid Justice. Shannon is an international and human rights lawyer from Sydney Australia and a late-stage PhD Candidate in international criminal law at the University of Sydney. She has worked at the international criminal tribunals and courts for Rwanda, the former Yugoslavia, Sierra Leone and Cambodia. She has previously written on political interference, bias and corruption at the Khmer Rouge Tribunal (ECCC). 

Dissent.

Hybrid courts are experiencing a renaissance, one which requires greater examination and understanding by those engaged in the field of international criminal justice. With the closure of the Special Court for Sierra Leone, the stalling of the Extraordinary Chambers in the Courts of Cambodia, and the restricted mandate of the Special Tribunal for Lebanon it was thought that hybrid courts had served their purpose as a transition between the United Nations ad hoc tribunals for the former Yugoslavia and Rwanda and the permanent International Criminal Court. However, the recent re-emergence of hybrid courts as a potential model to achieve accountability in the Central African Republic, South Sudan, Sri Lanka, Kosovo and elsewhere, has called this understanding of relevance into question. The purpose of this post, and the ongoing research it is based on, is to better understand the dynamics underpinning hybrid courts and, in doing so, to contribute to reforms in the field both in terms of internal institutional and external community resilience. More specifically, it aspires to facilitate an analysis of the creation of hybrid courts and the reasons for their current challenges. It also assists in understanding why there has been a reemergence of hybrid courts.

State responses to international criminal justice can be categorised as falling into three general categories: support, acquiescence, and dissent. Support in the context of hybrid justice encompasses a range of responses from simple agreement, to active engagement with the justice process. Acquiescence is the reluctant acceptance of something without actively protesting or objecting to it. It can also mean to comply without creating difficulties or obvious impediments to the process, but in the absence of exhibiting active support. Finally, dissent, the focus of this research means to hold a varying opinion to that which is commonly held. It is the antithesis of support. To dissent means to disagree and to be in opposition to something. It means to refute or to turn away from the status quo and to take a contrary view or stance.

The dissent of a state in response to the creation of a hybrid court can be both open and obvious or diffuse and covert. Dissent can be expressed through a state being unwilling to take part in the justice process such as being unwilling to sign an agreement establishing a court or, in the case of signing, being unwilling to ratify the agreement. It could mean a state being unwilling to implement the terms of the agreement, or even working actively to undermine those terms as an act of dissent in opposition to the justice process.

There is, of course, considerable overlap and blurred boundaries between each of these responses. An assessment of the tension between these three viewpoints, modes of behaviour, and communication styles enables a better understanding of internationalised hybrid courts and, in particular, state responses to these justice mechanisms. Support, acquiescence, and dissent can be evidenced firstly on a historical continuum marking the trajectory of international criminal justice from the UN ad hoc tribunals of the early 1990s, through to the first wave of hybrid courts, then to the ICC and now in the re-emergence of hybrid courts. These three responses comprise not only former and current views on international hybrid justice, they also exist simultaneously within each hybrid court.

State dissent or opposition was expressed against the UN ad hoc Tribunals for the former Yugoslavia and Rwanda namely due to their high cost, restricted mandates, protracted trials and an inability to respond to both the needs of victims and the accused. This inspired the creation of the first wave of hybrid courts which focused on Sierra Leone, Cambodia, East Timor, Bosnia and Lebanon. This dissent is distinct from the more recent dissent which inspired the reemergence of hybrid justice in more recent years through the established or merely conceptualised courts for Kosovo, South Sudan, the Central African Republic, Ukraine, Sri Lanka, Colombia, and ISIS. 

Comparatively, the reemergence of hybrid justice has been the result of more generalised dissent which has been expressed in recent years over the perceived inadequacy of globalised justice responses such as the ICC and the alleged neocolonial nature of international justice intervention. Whilst original hybrid courts were created in the search for new justice responses as more efficient and democratic alternatives to the Yugoslav and Rwandan Tribunals, the reemergence of hybrid courts in recent years has been due to the increasing prioritisation of the local over the international and a reclaiming of justice responses by the state.

The relationship between the state and the ‘authority’ (such as the UN or regional organisation such as the African Union or European Union) in the creation of a hybrid court is highly influential on the character of the court and on the outcomes of the justice process. The relationship inspires a situation where historical and contemporary power dynamics are played out. This results in a testing of authority and power as well as the generation of conflict between competing interests, despite the relationship being pursued with intentions to collaborate and facilitate. This tension renders the relationship between the post-conflict state and the ‘authority’ contentious at times, giving rise to accusations that the authority is encroaching on the post-conflict state. This leads to a push back on that authority by the post-conflict state and resultant tension and instability at the hybrid court that infringes on the judicial process, such as has occurred in the Cambodian and ECCC context.

In international criminal justice, dissent of any kind is not generally welcomed unless it produces more institutions of international criminal justice. It is typically treated as being threatening to the project, its aims and integrity. But it should be seen as an opportunity for reevaluation and reform. There is a need to question whether dissent is actually negative, or rather whether it is positive and part of the maturation of international criminal justice, a development that is beneficial to reforming and strengthening the project, contributing to both internal institutional and external community resilience. Dissent is powerful and transformative, it can destabilise and rearrange international and local power structures and monopolies, and it can also contribute to the reassessment and restructuring of existing power dynamics.

In explaining the existence and evolution of dissent that has taken place in the international criminal justice project, the ability to dissent from international criminal justice norms and institutions is a productive power. To dissent from something suggests that the situation or issue that is being dissented from is the authoritative or authentic view, when this is arguably not the case in international criminal justice project. In light of accusations of neocolonial and Western-dominated power dynamics that are at play in the creation and implementation of international criminal courts and tribunals, more can and should be done to engage with and harness the power of dissent.

*** These ideas are more fully explored in an upcoming publication. ***