Reframing the ICC Selectivity Debate? The Importance of Consistency and Transparency

Posted on April 24, 2018 by Mark Kersten

Benjamin Nutt joins JiC for this guest-post which critically explores issues of selectivity at the International Criminal Court (ICC). Benjamin is an Associate Lecturer in Politics and International Relations at Plymouth University. He has recently completed his PhD, titled: ‘A Search for Justice: An Analysis of Purpose, Procedure and Stakeholder Practice at the International Criminal Court‘.

From ‘victors’ justice’ at Nuremberg and Tokyo to the alleged ‘anti-Serbian bias’ at the International Criminal Tribunal for the former Yugoslavia (ICTY), allegations of unfair selectivity have long shrouded the search for international criminal justice. The International Criminal Court (ICC) is no exception. Whether it be an ‘African bias’ or a focus against rebel leaders and deposed politicians, claims of unfair selectivity by the Office of the Prosecutor (OTP), and subsequently the ICC, are as vociferously purported by the Court’s opponents as they are rebuked by its supporters. It is this binary division that signifies how this debate surrounding the OTP’s practice is framed. By criticising and defending the OTP’s actions in the context of selectivity, selectivity has manifested itself as an issue in itself and something to be avoided, thus creating the impression that universalism in terms of where and who is targeted by the OTP is not only possible but also desirable and synonymous with justice. It is not that simple and it is important to recognise that transactions of justice are, by their nature, inherently and inevitably selective.

Justice transactions involve choosing, or selecting, between competing claims for resources and entitlement. Furthermore, there is often no correct or perfect approach. Different theories or conceptions of justice offer different outcomes and solutions. This reality is demonstrated by Amartya Sen’s ‘flute analogy’, in which three children stake competing claims to a flute. Each of the children’s claim to the flute is championed by a different theory of justice and Sen notes that — absent the possibility of chopping the flute in three and thus rendering it useless — there is no realistic, workable outcome that could reconcile all the children’s claims simultaneously. The point here is that notions of justice are selective by nature. In the context of the ICC, this is particularly relevant as the OTP is selective by design. The OTP has a mandate to be selective, driven by the concepts of complementarity and gravity. In other words, the most pertinent question regarding the OTP’s practice is not if it is selective but how it is selective.

Instead of focusing on selectivity as a primary issue within OTP practice, the debate should be reframed so that consistency and transparency become the chief focus. Consistency and transparency are central elements of just decision-making, underpinning both the processes through which decisions are made and the outcomes they produce. But, of these factors, consistency and transparency of outcomes ranks as the most important with regards to the OTP’s, and subsequently the ICC’s, credibility and legitimacy because, as the most visible component of any justice transaction, outcomes are most vulnerable to criticism.

When analysing the OTP’s actions, it is important to note that the ICC Prosecutor is mandated to investigate and prosecute those individuals responsible for atrocities from the most severe situations and that historically international criminal justice processes have been reserved for situations with high mortality rates. However, concerns could plausibly be raised regarding the seeming inconsistency in the gravity of the situations currently under Full Investigation by the OTP, particularly when gravity is measured quantitatively (in terms of the scale of the crimes committed) and viewed as synonymous with a situation’s death-toll (or a ‘litres of blood’ measurement). For example, there appears to be a large inconsistency between the death-toll statistics for the Democratic Republic of Congo (DRC), Uganda and Darfur situations, all of which are extremely high (hundreds of thousands), and those of Kenya, Central African Republic and Burundi, which are noticeably lower in comparison (a few hundred). These are realities that perhaps serve to highlight inconsistencies in the OTP’s selection criteria and/or practice. Continue reading →

Posted in Guest Posts, ICC Prosecutor, International Criminal Court (ICC), International Criminal Justice | Tagged | 3 Comments

The Trial of Hissène Habré and What it Could Mean for Justice in Africa

Posted on March 27, 2018 by Mark Kersten

Celeste Hicks joins JiC for this post exploring the trial of Hissène Habré and what it could mean for future justice and accountability efforts in Africa. Celeste is a freelance journalist focusing on Africa and the Sahel. She was a BBC correspondent in Chad and Mali from 2008-10. ‘The Trial of Hissene Habre – How the people of Chad Brought a Tyrant to Justice‘ is her second book. 

Celeste Hicks is the author of ‘The Trial of Hissene Habre – How the people of Chad Brought a Tyrant to Justice’, (forthcoming, Zed Books 2018)

The legal vagaries and judicial details of the Extraordinary African Chambers (EAC), which sentenced Hissène Habré to life imprisonment in 2015, was not at the top of the list of concerns of many of  the former Chadian president’s victims. What matters most was the EAC’s success in reaching a guilty verdict on charges of war crimes, crimes against humanity and torture on a remarkably tight timeframe and on a budget of just over 8 million euros.

However, for wider African justice, the EAC’s status as an ad hoc hybrid court established inside the existing Senegalese justice system is significant. There were a lot of firsts: it was the first time that the African Union (AU) had established a court; the first time a former African head of state had been tried before a court in another African country; and the first time a universal jurisdiction case had proceeded to trial in Africa. Being founded at a time when many legal analysts had largely concluded that hybrid trials would soon cease to be relevant, the EAC was part of something like a re-birth in hybrid justice. Although the EAC has been described as residing ‘at the limits’ of what a hybrid trial could be because only a handful of its officials were not Senegalese, it was widely praised for its status as an ‘African’ hybrid court. In practise this meant the judges, defence and prosecution teams were all African and, significantly, the Chadian victims were allowed representation through the forming of ‘civil parties’ to the litigation, mostly organised by Chadian lawyers.

The EAC thus provides us with some interesting lessons as attempts are now being made to set up similar hybrid trials in other African countries. As efforts to establish a court for South Sudan have been delayed by political blockages and the fact that political violence there has not yet ceased, the EAC has shown us how a court could be established in another country — in this case Senegal where Habré had sought exile in 1990. Basing the trial in Senegal defused some of the political tensions which could have been stoked by attempting to hold a trial in Chad itself, and removed the need to extradite him abroad (possibly to Europe).

As momentum builds behind efforts to establish a hybrid trial to investigate human rights abuses in Central African Republic (CAR), the EAC’s failure to secure the extradition of five co-accused former members of Habré’s secret police also provides valuable learning opportunities with regards to how to choose who to prosecute. In the CAR there may be many thousands of individual perpetrators, and the EAC has created much food for thought about the relative merits of going for the top leadership or middle level officials who may have been more involved in the day-to-day acts of torture.

Among the situations being most closely watched today is that relating to the former president of The Gambia, Yahya Jammeh, who fled into exile in Equatorial Guinea in early 2017 after losing a presidential election and negotiating his departure with regional powers. Reed Brody from Human Rights Watch, who played a major role in bringing about Habré’s trial before the EAC, has already met victims of alleged human rights abuses under Jammeh and has expressed an interest in using a similar approach in bringing a prosecution. There are certainly parallels to the Habré case, with Equatorial Guinea seeming to offer the former president a similar kind of protection that the Chadian leader enjoyed for more than ten years under Abdoulaye Wade in Senegal. Yet while the use of universal jurisdiction (a so-called ‘unique pillar’ of the EAC) is unpopular with many African heads of state in Africa, it could in theory be used to secure Jammeh’s extradition. Continue reading →

Posted in African Union (AU), Chad, Chambres Africaines Extraordinaires (CAE), Gambia, Guest Posts, Hissène Habré, Senegal, Yahya Jammeh | 2 Comments

Hybrid Justice for Victims of Mass Crimes – Making the System Meaningful

Posted on March 19, 2018 by Mark Kersten

Philipp Ambach joins JiC for this last instalment in our Hybrid Justice Symposium. You can access all of the terrific contributions to this symposium here. Philipp is the Chief of the Victims Participation and Reparations Section in the Registry of the International Criminal Court (ICC). 

Residents of northern Uganda watch the opening of the trial of Dominic Ongwen, a former commander in the Lord’s Resistance Army (Photo: CICC)

The International Criminal Court (ICC) pioneered a set of new victim-centered features in its normative and procedural framework that are unprecedented by the ICC’s famous predecessors, the UN ad hoc tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR). A number of internationalised ad hoc criminal courts and tribunals were established subsequent to the ICC’s creation and, interestingly, almost all of these justice mechanisms include more or less comprehensive victim participation and reparation regimes. The Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Tribunal for Lebanon, the Kosovo Specialist Chambers, the African Union-sponsored Chambres africaines éxtraordinaires (established to try former Chadian dictator Hissein Habré), and the Cour pénale spéciale Centrafricaine in the Central African Republic all contain specific provisions on victim participation and, to varying degrees of detail, on reparations for victims in case of a conviction. It would thus appear that a more or less comprehensive victim participation regime has become a necessary component of any modern international criminal justice mechanism. This trend is guided by the idea that the traditional retributive justice paradigm has to be paired with restorative/reparative justice elements in order to have the long-term positive societal impact that modern international criminal justice is designed to achieve.

Yet the victim participation and reparations regime at the ICC is not without its challenges. These include procedural and budgetary challenges, as well as challenges associated with rendering meaningful the impact the system has on victims and affected communities. At the same time it needs to be acknowledged that the ICC is presently the best-equipped international criminal justice mechanism in operation, with a budget of over 147 million Euros, six field offices in different countries where the ICC investigates/operates, and a Trust Fund for Victims which is designed inter alia to render the ICC’s reparations mandate meaningful by supplementing the money available for reparations to victims through States’ and other funders’ voluntary contributions. It may be even more difficult for internationalized ad hoc justice solutions operating in singular situations alongside the ICC particularly where the latter has no jurisdiction, to succeed with their victim participation and reparation systems. A number of key challenges can be identified which may ‘make or break’ the general framework of meaningful participation of victims in criminal proceedings and reparative elements at the end of the process:

Identification of and Outreach to Victims for the Purpose of Participation and/or Reparations

In order to ensure meaningful participation of victims in judicial proceedings, victims need to have knowledge of the mandate of the institution, and sufficient information on how to access the proceedings. It is insufficient if a court or tribunal simply provides a legal framework allowing for the participation of victims, but remains inactive in terms of reaching out to affected communities on how they can best gain access. There needs to be a coherent outreach strategy for every institution to contact relevant victims and affected communities in order to explain what the court/tribunal is about, what victims’ participatory rights are and, importantly, what they can expect quite concretely from their participation in the proceedings.

There are a number of lessons learnt from the ICC and ECCC context on the development of outreach strategies to victim communities that should be devised at the outset of every new hybrid court/tribunal, most prominently the Kosovo Specialist Chambers and the Central African SCC which are both, while in different phases of establishment, still to commence their work. Only through a comprehensive and long-term outreach strategy will a hybrid court be able to generate the local legitimacy required for long-term, positive impact on affected communities.

Victims’ Choice of Counsel and the Provision of Legal Representation in the Proceedings 

The more effectively the victims’ procedural rights are communicated and exercised, the more effective is the victims’ perceived access to justice. At the ICC, Rule 90(1) of the Rules of Procedure and Evidence starts off with the general principle that “[a] victim shall be free to choose a legal representative.” Reality, however, has shown that in almost all cases victims are organised in groups and assigned common legal representatives paid through legal aid funds provided by the ICC. This system has been reproduced by subsequent hybrid courts and tribunals, where bundling victim representation in the proceedings into one (or exceptionally more) team of common victim lawyers is increasingly the norm. In the prosecution of mass crimes (presumably involving large numbers of victims) before an international(ised) court with finite resources, it is likely that common legal representation will increasingly become the rule. The accused’s right to a speedy trial is another factor that speaks for a streamlined and not too time-consuming victim appointment and representation regime. Continue reading →

Posted in Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals, International Court of Justice, International Criminal Court (ICC), Outreach, Victim Participation | 3 Comments

Hybrid Justice for Heads of State? The Habré Trial and the Norms of African Sovereign Immunity

Posted on March 16, 2018 by Mark Kersten

How have hybrid courts dealt with the question of head of state immunity and how might they in the future? In this latest contribution in our ongoing symposium on Hybrid Justice, Kerstin Carlson joins JiC to explore these questions in the context of the trial of Hissène Habré and its aftermath. Kerstin is an Associate Professor in the Department of Law at the University of Southern Denmark. She is also affiliated with The American University of Paris and iCourts at the University of Copenhagen. She is the author of Model(ing) Justice: Perfecting the Promise of International Criminal Law (Cambridge University Press, forthcoming 2018).

(Photo: Jean-Louis Atlan / Sygma / Corbis)

There is an ongoing disagreement in international criminal law regarding sovereign immunity. International humanitarian law takes the possibility of challenging impunity as a central element of its mandate, in part because of the fundamental norm of rule of law practice that none is above the law and in part because leaders are those who arguably bear the greatest responsibility for the types of collective harms international humanitarian law would criminalize. Thus international criminal law as practiced by ad hoc tribunals and the International Criminal Court promises that sovereigns are not immune from prosecution for atrocity crimes, and suggests that violations of international humanitarian law by those in positions of power are more worthy of prosecution that the infractions of low level offenders. This norm does not distinguish between sitting and former heads of state.

At the same time, there has been significant pushback, especially across Africa, over the prosecution of sitting leaders. This pushback has arisen in many forms, with perhaps the most public being the refusal of South Africa and others to comply with the ICC’s open arrest warrant against Sudan’s president Al-Bashir. More subtle, but no less significant, are examples such as amendments to the Malabo Protocol, the guiding document of the African Union’s proposed African Court of Justice and Human Rights, which explicitly grant sitting heads of state immunity from prosecution (but also references norms that would limit sovereigns to two terms in office, thereby in principle making them available for prosecution when they leave office). While this court is far from the 15 ratifications required to make it operational, Kenya has promised to join Uganda and ratify the proposed court by March 15 2018.

In this contested environment, the recent prosecution and conviction of former Chadian head of state Hissène Habré by an ad hoc, hybrid tribunal in Senegal was momentous. The Chambres Africaines Extraordinaires (CAE), a cooperative effort supported by western governments, the African Union, Chad and Senegal, was a temporary tribunal nestled in Senegal’s local juridical architecture that applied international criminal law to try Habré. The outcome of a 25-year saga by Chadian victims groups and international NGOs to bring Habré to justice, the CAE was novel in several ways. It was the first court set up in one country to try the leader of another, and the first African application of universal jurisdiction, a doctrine enabling any judge in any court to consider commissions of internationally recognized crimes. Despite these characteristics, the CAE’s greatest claim seems to be that it is an African institution that successfully prosecuted and convicted a former head of state. Other such attempts have always been the purview of internationally governed institutions such as the Special Court for Sierra Leone or the International Criminal Court.

The experience of the Habré process leads to the question: what does the trial of the former Chadian President tell us about current resistance to sovereign impunity on the African continent?  Continue reading →

Posted in Chad, Chambres Africaines Extraordinaires (CAE), Hissène Habré, Hybrid Courts, Hybrid Justice Symposium, Senegal | 9 Comments

Outreach, In-Reach or Beyond Reach? Lessons Learned from Hybrid Courts

Posted on March 15, 2018 by Mark Kersten

In this sixth instalment in our ongoing symposium on Hybrid Justice, Eva Ottendoerfer joins JiC for this post on the critical role of outreach in hybrid tribunals. Eva is a Post-Doc Fellow at the chair for international institutions and peace processes at Goethe-University Frankfurt. She has done research in Sierra Leone, Timor-Leste and at the Trust Fund for Victims at the ICC. The topics she works on are the contestation and localisation of international norms in the field of transitional justice and the design and implementation of reparation programmes.

Sierra Leoneans sit in front of a television relaying images from the Special Court for Sierra Leone in The Hague on the day of the Taylor verdict, April 26, 2012. The Special Court Outreach and Public Affairs section sponsored the outdoor event, which took place at the site of mass graves near the village of Mathiri in Port Loko district. (Photo: SCSL Outreach)

Outreach has been identified as a crucial function of international criminal tribunals, a means to ensure that the purpose of prosecuting those most responsible for mass crimes is well understood by affected communities and to prevent false rumours about the proceedings from spreading. While hybrid tribunals in most cases have the advantage of being located in-country, this does not automatically mean that they are better at reaching out to the population. Accordingly, a communications strategy via the media is insufficient in making sure that people will be able to follow (and understand) the proceedings. Instead, as the International Center for Transitional Justice argues in its guidelines on outreach, it is necessary to establish structures for a direct engagement with the population and to find culturally sensitive ways of communicating the message that justice is being done. Still, the question remains: how should outreach be designed and organised and what roles can it fulfil for a hybrid tribunal?

Tribunals have developed their own understanding of outreach which differ with regard to: what messages should be communicated communicate; whom to address with outreach; and how to communicate with the identified target groups. A conservative model of outreach limits its functions to a mere provision of information about the court, its mandate, and the proceedings to those affected by massive human rights violations. This represents a one-way street of communication. A more holistic model allows a broader educative function of outreach, going beyond the provision of information and instead aiming at the communication of the principles of rule of law and their function in a democratic society. It accordingly addresses a broader range of segments of society and also provides an interactive forum for dialogue in which opinions and ideas are communicated back to the court. This gives people a voice and agency in making their input reach back into the court.

Both of these approaches have already been applied in hybrid tribunals. The outreach section of the Special Panels for Serious Crimes in Timor-Leste was put in place in 2003, three years after the establishment of the tribunal. It consisted of one person and was instituted under the investigation unit of the tribunal. The section was based in Dili and undertook trips to the rural areas — together with the investigation unit — to meet people in community meetings. These only started to take place on a regular basis in 2005. At the same time, outreach efforts drew a one-sided picture of the court’s aims and mandate. Any cooperation with NGOs to compensate for the lack of staff and equipment was difficult since the leading East Timorese NGOs rejected the work of the hybrid tribunal and demanded the establishment of an international ad hoc tribunal instead.

The Special Court for Sierra Leone, in contrast, conducted outreach from its inception. During the Court’s first year, the first chief prosecutor, David Crane, and the first registrar, Robin Vincent, travelled across the country and organized townhall meetings. In the second year, an outreach section was established under the registry and set up district offices across the country, staffed with people who spoke local languages. Apart from providing information for affected communities, meetings also took place with stakeholders such as local chiefs and the media, as well as with school children and university students. Outreach events not only focused on providing information about the court’s proceedings but also on general principles of rule of law. The first head of the outreach section, Binta Masaray, was a well-connected member of Sierra Leone’s civil society and set up a strong network with civil society organisations. This contributed to effective engagement with the wider population. A Special Court Interactive Forum also served as a dialogue forum in which civil society representatives could exchange their views and opinions with the court’s staff.  Continue reading →

Posted in Central African Republic (CAR), Guest Posts, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals, Outreach, Special Criminal Court | 3 Comments

So We Can Know What Happened? The Curious Impact of Hybrid Courts on Education

Posted on March 15, 2018 by Mark Kersten

Caitlin McCaffrie joins JiC for this fascinating post on the impact of the Extraordinary Chambers in the Courts of Cambodia’s impact on educating youth about the crimes that this hybrid court examined and addressed. This marks the fifth installation in our ongoing symposium on Hybrid Justice. Caitlin is the Co-Director of Cambodia programs for the WSD Handa Center for Human Rights and International Justice.

Cambodian school children in Phnom Penh (Photo: AP Photo/Heng Sinith)

Many have remarked on the recent re-emergence of hybrid tribunals as mechanisms of international criminal justice. It is thus timely to further explore the particular characteristics of hybrids and what potential impacts they can have on the societies they are intended to serve. This post takes the case of the Extraordinary Chambers in the Courts of Cambodia (ECCC) to demonstrate an often overlooked impact of hybrid tribunals: their potential to educate future generations about crimes of the past.

The ECCC began its operations in 2006 after lengthy negotiations between the United Nations and Royal Government of Cambodia. This unique tribunal, sometimes referred to as ‘internationalised’ rather than hybrid, is mandated to try crimes committed on Cambodian territory between 17 April 1975 and 6 January 1979 by “senior leaders and those most responsible.” Hearings in the first case against Kaing Guek Eav, alias Duch, began in 2009. That case ended in 2012 when Duch was given a life sentence on appeal. Two other men, Nuon Chea and Khieu Samphan, remain on trial for a slew of charges with a verdict expected in June 2018. Criticisms of the ECCC are not hard to come by and often centre on its cost (around $300 million) and duration to conviction rate (three elderly men in twelve years). However, can the value and impact of a tribunal really be measured in such terms alone?

The hybrid elements of the ECCC are chiefly its mixed composition and location. All major functions of the tribunal are carried out by both Cambodian and international staff – prosecution, defense, judiciary, administration, security. Also, as opposed to The Hague or Arusha-based tribunals, the ECCC is located on the outskirts of Phnom Penh, within the country affected by the crimes being tried. Perhaps most importantly, proceedings are simultaneously translated into Khmer, English, and French, making them more accessible to the local population. To date, close to half a million Cambodians have either visited the court or attended public information briefings in the countryside. This level of engagement – not to mention those people who have benefited from numerous civil society programs inspired by the ECCC — is unlikely to have occurred if the trials were taking place outside of Cambodia.

It is often said that unrealistic expectations are placed on hybrid courts to be all things to all people. They have variously been expected to achieve ‘justice’, promote reconciliation, provide reparation to victims, symbolise an end to impunity, and improve the capacity of the domestic legal community. In part, this is a reflection of the different motivations of the multiple parties to such tribunals – lawyers may be more interested in improving domestic legal systems, some victims may prioritise ‘justice’ while others are more concerned with punishment or some form of reparation. One group which is often left out of these discussions are the children and grandchildren of survivors. What do they want from a hybrid court? Are their views different from those of their elders?

A recent study carried out in Cambodia asked just this question. Between July and December 2017 the Cambodia Programs of the Stanford-based WSD Handa Center for Human Rights and International Justice (Handa Center) conducted focus group discussions with university students in Phnom Penh to gather their opinions about the ECCC. Interestingly, when asked what they believed was the biggest ‘legacy’ of the Tribunal, the majority of students named the court’s ability to educate their generation about what happened as the ECCC’s most important contribution. This was rated higher than the tribunal’s ability to provide justice, reconciliation or reparation.  Continue reading →

Posted in Cambodia, Extraordinary Chambers in the Courts of Cambodia (ECCC), Guest Posts, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals, International Criminal Justice | 4 Comments

Striking the Right Balance – Blending International and National Components in Hybrid Courts

Posted on March 14, 2018 by Mark Kersten

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.  

Hybrid Courts

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.   Continue reading →

Posted in Central African Republic (CAR), Hybrid Court for South Sudan, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals | 5 Comments

State Dissent and the Reemergence of the Hybrid Court

Posted on March 14, 2018 by Mark Kersten

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.  Continue reading →

Posted in Hybrid Court for South Sudan, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals | 4 Comments

Recognition and Representation — The Continued Relevance of Hybrid Tribunals

Posted on March 13, 2018 by Mark Kersten

Why does the hybrid model of international criminal justice persist? Srinivas Burra joins JiC in attempt to answer this question in the second installation of our ongoing symposium on hybrid justice. Srinivas is a Assitant Professor in the Faculty of Legal Studies, South Asian University, New Delhi. 

A hybrid solution? (Photo: Royal Society of Chemistry)

The idea of international criminal justice gained an irreversible locus in the international legal imagination with the establishment of the permanent International Criminal Court (ICC). Despite this it continues to be subjected to criticism, often rooted in questioning the legitimacy of institutions than in evaluating legal details. This post attempts to underscore the strengths of hybrid model in subduing the criticism faced by international courts.

Criticism of the legitimacy of international criminal justice is primarily directed at the power relations involved in the international criminal trials, focusing on an argument that they target only particular States or regions like Africa. The centrality of power in international criminal justice was underlined in the criticism of victors’ justice after the Second World War too. The other legitimacy criticisms focus on the external nature of international criminal justice being pursued at the international courts and tribunals. These legitimacy issues are linked in a concrete a way to ‘who’ and ‘what form’ of international criminal justice is rendered. It has been the case that international criminal justice through ad hoc tribunals like the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), and now the ICC are perceived and also professed as the international community’s response, with insufficient domestic participation from the state where the violations took place. Similarly, with regard to ‘what form’ they take, these institutional responses are also seen as performance by external actors as they provide little representation to the domestic actors. These issues, despite their bearing on a few matters of law and legality, are primarily concerns of a political and cultural nature. They are also linked to certain historical and economic factors like the colonial past and their continuing relevance in the present.

Opposite to internationalized courts are the conventional domestic prosecutions.  Prosecuting  cases involving serious crimes before  the domestic courts,  to avoid facing the legitimacy challenges of international courts, may lead to two inferences: First the international criminal prosecutions cannot overcome the crisis of legitimacy; second, there is no viable alternative to domestic criminal prosecutions despite their inherent limitations in respect of certain grave crimes in certain grave situations. As Frederic Megret discusses elaborately, the idea of criminal justice under international law revolves around this binary position.

Hybrid models have the potential to address some of these concerns. But what makes an international criminal justice model hybrid remains contestable. However, a core minimum can be identified as necessary for a criminal tribunal to be classified as a hybrid.  This minimum should include the process of the applicable law, the substantive applicable law (a mix of domestic and international), and the personnel involved in the institutional setup (a mix of international and domestic staff). Equally significant is the location of the tribunal. Domestic involvement in the framing of the applicable law including domestic law and inclusion of the local people as prosecutors, judges and administrative staff makes it manifestly hybrid in comparison to other factors like language of the proceedings of the tribunal and active involvement of victims and local communities.

Contextualization in Global Justice

Megret underlines that a “crucial function of international criminal trials… should be to ‘represent’ the nature of the crimes they are judging, by designating and acknowledging the communities that are being affected by them”. A way to achieve this is to contextualize the crimes and their prosecution as a concern of the international community. Accordingly,  the cosmopolitan character of international criminal justice can be realized only through grounding it in the processes of its realization in the global justice discourses. In this regard, Nancy Fraser’s three dimensional approach to global justice is particularly relevant. The three dimensions include: distribution, recognition, and representation. The distribution dimension deals with economic maldistribution, recognition deals with status inequality, and representation focuses on political dimensions covering issues of participation and membership.  While critically evaluating the idea of justice under international law, B S Chimni convincingly argues that for a just world under law these  “three  kinds  of legitimate  claims  that  constitute  the  idea  of  global  justice… help  establish  a  global  law  of  welfare  in  the  matrix  of  international human  rights  law.”   Continue reading →

Posted in Guest Posts, Hybrid Courts, Hybrid Justice Symposium, Hybrid Tribunals, International Criminal Justice | 3 Comments

International Criminal Justice Redux: A New Wave of Hybrid Courts

Posted on March 13, 2018 by Mark Kersten

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.  Continue reading →

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 | 5 Comments