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.
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. Continue reading