12/5/2018
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.
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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:
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: