Committing to Justice for Serious Human Rights Violations: Lessons from Hybrid Tribunals

12/5/2018

Elena Naughton

This report aims to help practitioners in the transitional justice field to understand the experience of establishing and operating hybrid courts and to address some common assumptions about these entities. To do so, it looks at hybrid or mixed courts in practice, drawing on experiences in five different contexts: Bosnia and Herzegovina, Cambodia, Lebanon, Sierra Leone, and Timor-Leste. 

Download the full report here.

Introduction

Hybrid courts (or mixed tribunals combining international and national components) are no longer a novel approach to pursuing criminal accountability for egregious crimes of international concern (war crimes, crimes against humanity, and genocide). Created and implemented in diverse contexts around the globe for over a decade, they provide countries with an alternative to a fully domestic or international judicial process to hold perpetrators to account for mass atrocities.

Over time, hybrid jurisdictions have proven themselves to be a viable model of justice in difficult circumstances. Although almost all have faced funding shortfalls at some time during their mandate and most have been met with strong opposition from those hostile to rigorous accountability efforts, each has investigated crimes and brought about justice where few if any other justice options existed. Their inherent strength rests, in part, on the flexibility they offer for responding to complex international crimes at the national level and on the opportunity they provide for promoting the exchange of information and expertise and for building capacity.

There is no model hybrid tribunal. Rather, each hybrid court is established in response to the particular needs of the context and may be “internationalized” in varying ways and to different degrees. The degree of international involvement has almost always been negotiated to meet the needs of domestic authorities who were reluctant to cede sovereignty and to address the concerns of international actors who were uncertain about the adequacy of existing due process norms or wary of limitations in the state’s judicial, legal, and institutional capacity.

As a result, a hybrid tribunal usually reflects the political compromises reached among the negotiating parties, most often the United Nations (UN) and the host state. The negotiation process itself can provide space for different factions to come together to build consensus around a common and sustainable approach to achieving accountability. They can also make accountability processes more responsive to the needs of victims and communities, including by giving victims the right to participate in the proceedings.

Because of this process of give and take, hybrid tribunals offer the promise of independent justice within a mechanism that is capable of responding to complex international crimes at the domestic level.

Hybrid Tribunals in Context

Hybrid tribunals can exist as stand-alone jurisdictions, operating outside the domestic justice system, such as the Special Tribunal for Lebanon (STL) and the Special Court for Sierra Leone (SCSL). Or they can be integrated into and form a part of the national judicial system, but with international judges, prosecutors, and staff, such as the War Crimes Chamber in Bosnia and Herzegovina (BiH) and the internationalized panels in Kosovo. Some, such as the Extraordinary Chambers in the Courts of Cambodia (ECCC), SCSL, and STL, are based on bilateral agreements between the UN and the government.

Depending on the context, hybrid courts have been modeled on both civil and common law traditions, consistent with national practice. For instance, in Cambodia, the ECCC operates within Cambodia’s domestic legal system, which is based largely on the French civil system of justice, with co-investigating judges. In BiH, however, the Office of the High Representative introduced a criminal procedure code with features from an adversarial system of justice, for instance, giving police and prosecutors rather than judges investigatory responsibility, in a country that had been using accusatorial procedures for years. The STL incorporates aspects of the civil law system, including questioning of witnesses by the presiding judge and the conducting of trials in absentia.

A few of the hybrid tribunals set up since 2000, such as the hybrid mechanism in Timor-Leste, have concluded their operations. Others, such as the ECCC, have become veritable fixtures in the national and international justice landscape, with large bureaucracies and political networks having been built up in and around them. At the STL, the office of the prosecutor closed its case-in-chief concerning the February 2005 attack that killed 22 persons, including former Lebanese Prime Minister Rafiq Hariri. Although at the time of this report’s writing, the prosecutor was considering an additional indictment and investigations of other attacks within the tribunal’s jurisdiction. The War Crimes Section in Bosnia and Herzegovina, which began as a hybrid tribunal with mixed panels of international and national judges, has since made the transition to a fully national justice process.

Hybrid tribunals have achieved some notable convictions and have provided a measure of justice for victims with little or no other means of redress. The judgments rendered against former heads of state, including Former Liberian President Charles Taylor and Khieu Samphan of Democratic Kampuchea, who were tried and sentenced to lengthy prison terms, and rebel and paramilitary leaders, such as Issa Hassan Sesay and Moinina Fofana in Sierra Leone, are but a few. In BiH, the War Crimes Section of the Criminal Division has reached a total of 202 first instance judgments and a total of 180 final verdicts, including for crimes relating to the Srebrenica Massacre of Bosniak men and boys in 1995, which was deemed a genocide by the International Criminal Tribunal for the former Yugoslavia (ICTY).

These efforts at fighting impunity have influenced, in ways large and small, the operations of other tribunals, such as the Extraordinary African Chambers in the Senegalese courts, inaugurated in February 2013. Each effort offers lessons for building credible processes applicable to ongoing international criminal justice projects and those actively under consideration, particularly in countries just emerging from conflict that suffer from fractured or highly politicized institutions and a deep trust deficit.

The decisions—both procedural and substantive—issued by hybrid tribunals continue to have an impact on both national and international jurisprudence, for instance, the recognition of the crime of forced marriage as a crime against humanity, the crime of child recruitment, the crime of criminal association, attacks against peacekeepers, the right to reparation, and victims’ participation, and the definition of the crime of terrorism.

Still, hybrid tribunals have been criticized for prosecuting a relatively small number of perpetrators in contexts where hundreds of people were involved in the commission of crimes. More often than not, they pursue only exemplary prosecutions involving a handful of suspects. SCSL operated for 11 years, but only issued 13 indictments for serious crimes, conducted four trials, and convicted nine defendants. Since it was established in 2005, the ECCC has charged seven persons, conducted three trials, and convicted three defendants. Even when measured against a narrow mandate of prosecuting culpable individuals at the highest levels, these efforts pale in comparison with the horrific numbers of lives lost and harms suffered.

In addition, the costs of operating a hybrid tribunal have been consistently high, even though one of the earliest hybrid tribunals, the SCSL, was intended to be “leaner and meaner” than the ad hoc tribunals—the ICTY and International Criminal Tribunal for Rwanda (ICTR)—that came before it, which were criticized for having outsized budgets. Despite efforts to rein in costs, hybrid courts continue to exceed their initial budgets, which often begin small but then grow over time. For instance, the ECCC, after operating for over 10 years, has so far completed only three trials, at a total cost in excess of USD 318.9 million, although the estimated original budget was USD 56.3 million.

Yet, despite these challenges, hybrid courts still offer a practical, feasible, and meaningful option for filling the impunity gap, especially in contexts where national judicial processes are underdeveloped or where capacity is so lacking that trials are unlikely to meet international standards. Oftentimes, the political obstacles to national trials, including entrenched and dominant interests opposed to accountability, are so great that only international backing and the involvement of international staff can ensure that trials move forward fairly. As such, hybrid tribunals continue to have enduring appeal.

Why a Hybrid Court?

Because of their hybrid structure, hybrid courts combine the potential advantages of national prosecutions (such as geographical and psychological proximity to victims and positive impact on domestic judicial and prosecutorial processes) with the benefits of international involvement (such as resources, personnel, and security).

Although hybrid courts are constituted primarily for the purpose of combating impunity and delivering justice to victims by adjudicating serious violations of international law in line with international standards, many of these courts were created to serve broader societal goals as well, reflecting the motivations and objectives of a host of different actors, both national and international. Because most conduct trials in the country where the crimes occurred, they are seen as a mechanism for making a lasting impact on a society.

For instance, in the foundational documents of the SCSL, the court is cited not only as a mechanism for ending impunity, but also for contributing to the “process of national reconciliation” and to “the restoration and maintenance of peace.” Similarly, in the agreement between the United Nations (UN) and the Government of Cambodia, prosecutions were undertaken “in the pursuit of justice and national reconciliation, stability, peace and security.”

Impact can also take the form of improving public confidence in state institutions and in the willingness of state authorities to enforce the law. In Sierra Leone, where conflict resumed after the request for a court was made to the UN Security Council, it was suggested that the court would “send the right signals to the perpetrators of the violations that they will not continue committing atrocities with impunity.” Victims who are demanding trials are assured that no one is above the law and thus that the rule of law has meaning.

At the societal level, it is often hoped that national justice processes will concretely impact the justice sector and improve capacity. The War Crimes Section in the Criminal Division of the Court of Bosnia and Herzegovina (BiH), for instance, was created as part of a wider rule of law initiative aimed at legal and judicial reform and strengthening national institutions. That objective entailed many challenges, as well as opportunities, as the prosecutor emphasized during the inauguration of the chambers in March 2005:

"The Court of BH [Bosnia and Herzegovina] must become a truly national court, which will mean a big step forward towards reconciliation. Enormous effort and crystal-clear fairness are needed to destroy suspicion, prejudice, lack of confidence. It is a great challenge, not a privilege. And in many ways your task will be more difficult, as you don’t have the powers of the International Tribunal, however, your power and authority is even greater—as this is your country."

This strategy of combining both international and hybrid criminal justice processes ultimately expanded the reach of justice and provides examples of cooperation that are worth considering. International involvement enhanced the country’s domestic capacity by making the national courts better equipped to address complex cases in a fair and transparent way, as the Organization for Security and Co-operation in Europe (OSCE) concluded at the end of the international mandate: “The establishment of both the Court of Bosnia and Herzegovina and the Prosecutor’s Office of Bosnia and Herzegovina at the state level, which became fully operational in 2005, was an important milestone for the country’s battle against impunity. Overall, the state level institutions have delivered efficient, fair, and human rights compliant proceedings.”

Hybrid judicial processes are also pursued to send a strong message to society that crimes occurred and must be remedied, to affirm that victims should be treated with dignity and compassion, to underscore the nation’s commitment to democratic principles and human rights, and, in some cases, to assist in the rehabilitation of offenders. Local trials can communicate a condemnation of past actions and reinforce the message that the nation has “turned a new page” and will not tolerate the recurrence of such abuses.

Many of the objectives advanced in connection with hybrid processes are important aspirational goals. It is crucial, however, that hybrid courts, similar to other justice mechanisms, are advanced with realistic expectations about what they can achieve and are not oversold as a vehicle for correcting a society’s ills.

The Purpose of This Report

This report aims to help practitioners in the transitional justice field to understand the experience of establishing and operating hybrid courts and to address some common assumptions about these entities. To do so, it looks at hybrid or mixed courts in practice, drawing on experiences in five different contexts: Bosnia and Herzegovina, Cambodia, Lebanon, Sierra Leone, and Timor-Leste. 

These hybrid tribunals span more than a decade of international experience and offer a window into shifts in thinking about the role that international and national justice systems can play in fighting impunity. Because discussions around hybrid processes are so often animated by concerns over their creation, sustainability, effectiveness, and fairness, this report is divided into five parts, covering the following topics:

  • The timeline for creating a hybrid court, from proposal to an operating court. Because hybrid courts are typically created during periods of political change, and sometimes amid ongoing violence, many factors will affect the amount of time needed for these processes to get underway. This section examines the factors that affect the amount of time necessary to establish a hybrid court, including the extent and depth of international and national commitment to the process, the availability of evidence, and availability of sufficient funding.
  • Considerations for bringing cases to trial, prosecutorial policy (or strategy). This section discusses the realities and hard choices facing prosecutors tasked with prosecuting mass atrocities. It covers the policies for selecting and prosecuting cases at each of the five tribunals and the criteria for making those decisions, including cases “ready for trial,” those involving the “most responsible” or most senior persons, or those involving the “most grave” or “most serious” crimes. It also looks at mapping processes; practices for making the criteria public; the selection of crimes for prosecution; and political and other considerations.
  • Structure, staffing, and recruitment and its challenges. This discussion provides a brief overview of the organizational structure of hybrid courts and then examines staffing at each of the five focus courts and recruitment practices and protocols for key positions, including for judges, prosecutors, the defense counsel, and the registrar.
  • Protecting witnesses and victims. Measures to protect witnesses and victims are essential to ensuring that critical testimony is available during criminal processes and that victims can participate. This section summarizes the measures for protecting and supporting witnesses and victims and for determining who is entitled to this protection. It also discusses the effectiveness of these measures, the amount of resources dedicated to them, and the scale of services provided.
  • Financing hybrid tribunals. This section provides an in-depth look at the cost of each of the five hybrid tribunals and how they have been funded. It discusses underfunding at the courts and the use of management committees to assist with fundraising and the monitoring of court operations.

A detailed assessment of the legacy of each court is beyond the scope of this report. To be meaningful, such an analysis would require more extensive and focused study of a range of effects on society, which are by nature difficult to measure, including improvements in the efficiency of national justice systems; increased capacity among judges, prosecutors, and other staff; and enhanced respect for the rule of law and international norms.

This report highlights instead the key attributes of an effective hybrid court and many of the conditions that are helpful for establishing one. These include:

  • Establishing a realistic timeframe for setting up the court. Fair and effective accountability mechanisms take time to build. Countries where mass atrocities have occurred are often lacking in the essential capacity, legal framework, and public trust required for delivering meaningful justice. Many have poorly functioning justice systems and entrenched interests opposed to accountability. Crime and corruption may be endemic and flourish, often with the support of people in power. Thus, it is advisable to first assess the extent to which the justice system can perform basic functions necessary for the rule of law and the capacity of key actors on the ground who must assist with implementation, including civil society.
  • Formalizing the court’s relationship to other bodies, including other courts and transitional justice mechanisms such as truth commissions. Hybrid courts have a distinct function from truth seeking and documentation institutions; they may also have primary or exclusive jurisdiction over international crimes. The relationship and modalities of cooperation between hybrid courts and other bodies should be defined in advance to ensure that each can operate effectively and in a complementary manner, while protecting the rights of the accused and others who appear before them.
  • Committing sufficient resources. To provide meaningful accountability for mass atrocities, a hybrid court requires a reliable and adequate funding stream. These resources also include a sufficient number of staff with the necessary expertise and training to get the job done. This is true not only for judges and prosecutors but also for court administrators, forensics experts, archivists, and others, who will be entrusted with sensitive public functions, including interacting with victims and witnesses. A hybrid court also requires political support to carry out its mandate fairly and effectively.
  • Ensuring that the legal and procedural framework is consistent with international human rights norms and standards and will provide victims with equal access to justice. Human rights standards should guide the court’s work. As such, efforts should be undertaken to harmonize and if necessary promulgate or amend domestic criminal law and procedure to incorporate international legal obligations into domestic law, ensure due process, and protect the rights of all persons who appear before the court. Consideration should be given to principles of liability and the non-applicability of statutory limitations to grave crimes such as torture, war crimes, genocide, and crimes against humanity.
  • Guaranteeing equality of arms. Trials before hybrid courts should be conducted in compliance with fair trial standards, which include the rights to defend oneself in person or through counsel, to call and examine witnesses, and to exclude evidence obtained in violation of international standards.
  • Creating adequate oversight mechanisms. To promote public trust in the integrity and legitimacy of court processes, oversight mechanisms should be established to separately oversee and manage court operations, resources, and funding, and should issue regular reports. Oversight may be conducted by an international body, or by a separately constituted oversight committee.
  • Ensuring the independence of prosecutors, the judiciary, administrators, and staff. To ensure the independence and impartiality of justice at the court, all court personnel, especially those serving as judges and prosecutors, should be recruited and vetted, in accordance with professional standards and principles of integrity. Otherwise, public perceptions of the credibility and fairness of the processes may be compromised.
  • Guaranteeing that witnesses and victims receive appropriate protection and support. In situations of impunity, the potential for retribution is a persistent concern especially given the nature of international criminal justice processes, which challenge not only individual perpetrators but also the structures and networks of power. It is essential that the type and degree of victim participation are considered and that adequate structures are established for protecting those who participate.
  • Cultivating local ownership and support for the process. Hybrid tribunals can help promote national ownership of post-conflict accountability processes.
  • Planning ahead for the transition to a fully national process or the completion of hybrid court trials. To maximize a tribunal’s impact on national processes, it is essential to plan well in advance for what will happen once the court closes, including the possibility of creating a residual mechanism for ensuring the enforcement of sentences, the review of judgments, and the management of court archives.
Date published: 
12/5/2018
Type: