At a time of great
crisis challenge for the International Criminal Court, hybrid tribunals have come roaring back into fashion. But what does it meant to be a hybrid court and how might the very hybridity of such tribunals be designed to address some of the mosts endemic problems facing the project of international criminal justice? To answer these questions, I have co-authored a paper entitled ‘Hybridization – A Spectrum of Creative Possibilities‘ along with Kirsten Ainley of the London School of Economics.
The paper is part of our ongoing project on hybrid justice (see our symposium on the subject here) and will hopefully be included in a book on the Hissene Habré trial and hybrid courts in the coming year.
I have posted the abstract below. The full draft can be accessed here.
Hybridization – A Spectrum of Creative Possibilities
After a sharp decline in interest, it appeared that the hybrid tribunal had become an “orphan” of the international criminal justice project. That was not to be. Recent years have seen a spate of hybrids established or proposed, from Syria and South Sudan, to the Central African Republic and Sri Lanka. This re-emergence of the hybrid has been addressed by numerous scholars. Yet it remains unclear what, precisely, it means to be a hybrid court and how the latest hybrids might contribute to furthering the project of international criminal justice.
The answer to the first question is typically assumed to be simple: hybrid tribunals are “of mixed composition and jurisdiction, encompassing both national and international aspects, usually operating within the jurisdiction where the crimes occurred.” But hybrids are much more than just middle-ground institutions that marry national and international components. As this chapter demonstrates, they are institutions whose very hybridity creates productive space for creative solutions, which can be used to address some of the most pressing shortcomings in international criminal justice.
This chapter demonstrates hybrid creativity through four specific examples, each allocated to a section of the chapter: (i) the outsourcing of outreach efforts at the Extraordinary African Chambers; (ii) combating victors’ justice at the Kosovo Specialist Chambers; (iii) sharing concurrent jurisdiction between the Central African Republic’s Special Criminal Court and the International Criminal Court; and (iv) using the premises of previous hybrid courts to host new tribunals and therefore reduce the financial and security costs of international criminal justice.
The analysis that follows is optimistic in many ways. We outline what we believe to be beneficial innovations in the pursuit of international criminal justice. However, we recognize both the problems inherent in evaluating the success of tribunals and the criticism that has been levelled against hybrids. The chapter does not seek to justify hybrid justice tout court but rather to highlight creative responses to challenges in the broader practice which have been developed by hybrids.