Erica Bussey joins JiC for this latest instalment our ongoing symposium on Hybrid Justice. Erica is a Senior Human RIghts Advisor with OHCHR in Sierra Leone.  She previously worked as a Senior Legal Advisor for Amnesty International, focusing on the Special Criminal Court for CAR, the Habre trial, ICC-Africa relations and the proposed hybrid court for South Sudan.  She has also worked as Coordinator of the Transitional Justice Unit at  the Joint Human Rights Office of MONUSCO in the DRC, as well as at the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia and the International Criminal Tribunal for Rwanda”. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.  This blogpost is a shorter version of a forthcoming article.  

A unique challenge of hybrid courts is bringing in the “right” mix of international, domestic and regional elements and staff

From the outset of the establishment of the first wave of hybrid tribunals including the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the Special Court for Sierra Leone (SCSL), there have been challenges in determining the “right” division of labour between national and international judges and staff on such tribunals that would ensure credible international participation to allay concerns regarding lack of independence and capacity, while also allowing sufficient national participation to ensure local ownership. These discussions, often framed in light of considerations of legitimacy, have led to intense negotiations between national actors and international partners such as the United Nations regarding the exact composition of these courts.

An interesting phenomenon in the establishment of two recent “hybrid” tribunals – the Special Criminal Court (SCC) in the Central African Republic (CAR) and the Kosovo Specialist Chambers (KSC) – is the extent to which they incorporate national judges and staff.  The SCC in CAR has a majority of national judges and nationals in key staff positions. At the opposite end of the spectrum, the KSC, by design, has no national judges or staff. In the middle there are uneasy compromises – such as the proposed Hybrid Court for South Sudan (HCSS), with a majority of non-South Sudanese judges and with all key positions reserved for non-South Sudanese. While some, such as Harry Hobbs, who has written extensively on the issue of composition of hybrid tribunals, have argued that the presence of national judges can enhance the legitimacy of hybrid tribunals, the question of legitimacy of such institutions can clearly cut both ways – legitimacy underpins both the decision to include a majority of national judges in the SCC for CAR and to exclude or minimize their participation in the KSC and the proposed HCSS.

Although the composition of SCC was disputed throughout the course of its establishment, the ultimate decision to include a majority of national judges was made in part due to concerns about sovereignty, particularly as the SCC is a court entirely within the domestic jurisdiction of CAR dealing with crimes as defined in the CAR Penal Code. The decision is also consistent with one of the avowed goals of the court: contributing to strengthening the capacities of the national judicial system. However, despite the numerical majority of national judges on the SCC, the Chambers which will make final decisions on appeal have a majority of international judges.

On the other hand, the KSC and the Specialist Prosecutor’s Office (SPO) that preceded it have no national judges or staff. The rationale is that their inclusion would diminish the tribunal’s legitimacy, given the particular conditions in Kosovo, with those likely to be accused entrenched in positions of power, and the failure of previous mechanisms which included national judges and staff to be able to independently prosecute former members of the Kosovo Liberation Army.

Decisions regarding the composition of these two tribunals can be tied, to some extent, to the experiences of the tribunals that preceded themsuch as the SCSL) and the (ECCC, which left a mixed legacy for other tribunals to follow. The SCSL, with a majority of international judges and staff, was criticized for a lack of legitimacy as a result of a lack of inclusion of Sierra Leonean judges and staff. The ECCC, with a majority of national judges but a convoluted system to ensure that international judges had the final say, has been criticized for political interference, corruption and a lack of judicial independence.  

The usual and often unquestioned assumption is that the legitimacy of hybrid courts will be enhanced by increased participation by national judges and staff. The very rationale for the creation of “hybrid” tribunals is that, by virtue of their location in the countries where the crimes were committed, with national staff and judges who have a better understanding of national laws and culture, and with the prospect of skills transfer/capacity-building, they would have greater legitimacy than the ad hoc tribunals, located far from the sphere of conflict and staffed by international judges and staff with little understanding of the context or the culture of the country in which the crimes were committed.  However, there are also legitimate concerns with including national judges and staff regarding lack of capacity, lack of independence and impartiality, and the potential for political interference. It is often these concerns which have led to the establishment of a hybrid tribunal in the first place, as purely domestic judicial processes were seen to be inadequate.

There are, of course, mechanisms that can be put in place to mitigate these risks. In addition to structural solutions such as those at the ECCC and SCC, which seek to include national judges while at the same time constraining their powers, and capacity building/training, other solutions include phasing out the international component and phasing in more national judges and staff as the tribunal develops, as was done at the Bosnia War Crimes Chambers, was proposed at the Specialist Mixed Chambers in the Democratic Republic of Congo and is being considered for the proposed HCSS. Ultimately, however, despite these measures, the risks of political interference and lack of independence may be seen as determinative – such as for the KSC, where it was deemed that there were no measures that could be put in place that would adequately guard against these threats.

It is also worth breaking down the “international” and “national” components. Ideally, the national component should include a balance of judges/staff from different ethnic and religious backgrounds, particularly in cases in which ethnic or religious divides were the root causes of the conflict in which the crimes occurred. This is easier said than done – as I noted in another blogpost, despite commitments to ensure that national judges and staff on the SCC represent different religious communities, the first round of recruitment for judges and staff has not been very successful in this regard.  To some extent, this is reflective of the limited representation of Muslims in the judiciary/legal profession in CAR. Another interesting question relates to the role that judges/staff from the diaspora may play in such tribunals – falling as they do between national and international.

With regard to the international component, some such as Hobbs have suggested that prioritization should be given to selecting judges from regional states. In effect, this appears to be occurring with the second-wave of hybrid tribunals, as several have been created by regional institutions such as the AU (the HCSS and the Extraordinary African Chambers (EAC)) and the EU (the KSC) rather than the UN. “International” judges and staff at the EAC and HCSS can thus only be selected from AU member states and while there is no such requirement at the KSC, de facto most of the judges are from the EU. Even at the SCC, which was established by a process led largely by the UN, many of the international judges and staff appointed so far have been from African states, including from states in the region.

However, regional representation can also be problematic given the involvement of neighbouring states or regional powers in the conflicts that led to the creation of these tribunals.  In the case of South Sudan, for example, several neighbouring states have been seen to be supporting one or the other of the government forces or the SPLM. The inclusion of judges/staff from any of these states on the HCSS may therefore be seen as favouring one side of the conflict over another, and may detract from its legitimacy.

Even where regional states may not be perceived as being partial to one side in the conflict, individuals from countries in the region may lack expertise or experience in certain areas – i.e. in forensic examination or investigation of complex international crime, as was the case for the Prosecution Support Cells established by the UN mission in the DRC.

It is too early to say how these considerations will play out with respect to recently established or proposed hybrid tribunals.  These reflections demonstrate, however, that decisions about composition can have profound effects on the legitimacy of hybrid tribunals, but also show the complexities of the issues that enter into such decisions.