“Hybrid” justice at the special court for Sierra Leone

• Published date: 17 March 2010
• DOI: https://doi.org/10.1108/S1059-4337(2010)0000051004
• Pages: 1-27
• Date: 17 March 2010
• Author: Sara Kendall

‘‘HYBRID’’ JUSTICE AT THE

SPECIAL COURT FOR

SIERRA LEONE

Sara Kendall

ABSTRACT

Hybrid forms of international criminal justice have been lauded for

combining the political and procedural legitimacy of international

tribunals with increased attention to the local contexts where mass

crimes occurred. This work critically examines the hybrid legal structure

of the Special Court for Sierra Leone, a novel post-conflict institution

empowered to draw from both international and Sierra Leonean law.

Although formally hybrid, the Court neglects domestic law in practice,

suggesting that ‘‘hybridity’’ refers more to a rhetorical strategy aimed at

legitimating its work than to its ontological status. By symbolically

including and substantively excluding domestic law, the court’s legal

structure inadvertently resembles a colonial form of legal pluralism rather

than a hybrid jurisdiction.

The proliferation of post-conflict juridical forms in the past two decades has

been widely read as marking a growing transnational interest in promoting

the rule of law and liberal-democratic principles. In this view, trials

and truth commissions are techniques of social and political reform: of

Special Issue: Interdisciplinary Legal Studies: The Next Generation

Studies in Law, Politics, and Society, Volume 51, 1–27

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2010)0000051004

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‘‘nation-building’’ (Teitel, 2003, p. 71) and of fostering ‘‘liberal virtues of

toleration, moderation, and civil respect’’ (Osiel, 1997, p. 2). Other

commentators note that the criminal law response to mass atrocity works

as a kind of ‘‘regulatory mechanism’’ (Drumbl, 2007, p. 3) or as a form of

governance (Findlay, 2008), offering another venue for enacting the political

desires of strong states. In the unfolding dialectic of international criminal

justice, post-conflict courts are increasingly turning to domestic forms and

actors to complement international institutional practices, producing what

some scholars have called a ‘‘third generation’’ of international tribunals

(Mayr-Singer, 2008). These ‘‘hybrid’’ forms were thought to carry the

potential of legitimating international criminal justice efforts at a local level.

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This chapter considers the legal form of the Special Court for Sierra Leone,

an internationalized tribunal that emerged at the turn of the millennium as a

potential new paradigmof post-conflict justice. Unlike its more widelyknown

United Nations (UN)-backed predecessors for Rwanda and the former

Yugoslavia, which were removed from the legal jurisdictions and geographi-

cal contexts of the affected states, this court was originally envisioned as a

‘‘hybrid’’ legal body in Sierra Leone that would draw upon international and

domestic law to adjudicate crimes committed during the country’s decade-

long conflict of the 1990s. The Special Court was founded at a time when

international criminal justice was expanding, both as a complement to the

growing field of human rights discourse and as part of a renewed interest in

international legal institutions during the post–Cold War period. This period

witnessed the development of the two UN-sponsored tribunals for Rwanda

and the former Yugoslavia, the establishment of the International Criminal

Court (ICC), and the emergence of various juridical forms to address crimes

committed in East Timor, Cambodia, Kosovo, Iraq and Lebanon. Among

these new legal bodies (or appendages to existing legal systems), the Special

Court for Sierra Leone was seen as a unique effort to establish a tribunal in

the physical territory of the affected state, yet with a basis of legal authority

outside the jurisdiction of the state’s existing court system. Through blending

the procedural legitimacyof international tribunals with domestic elementsto

bring it closer to the affected population, this court offered a kind of political

and legal compromise: a ‘‘new model’’ for post-conflict justice, as one of its

lead prosecutors claimed (Rapp, 2008, p. 21).

Despite these visions for a more inclusive juridical form, the Special

Court’s hybrid aspirations are shadowed by an unexamined colonial legal

heritage. Including elements of Sierra Leonean law in the Court statute – the

basis for the Court’s de jure hybridity – offers a counter-argument to claims

that the Special Court was an unwelcome imposition by the international

SARA KENDALL2