The building blocks of hybrid justice.

• Author: Van Schaack, Beth
• Position: I. Introduction through II. Origins E. Regional Efforts, p. 169-204

1. INTRODUCTION

   The commission of mass atrocities--genocide, crimes against humanity, and war crimes--inevitably generates clarion calls for accountability from a range of international actors, including civil society organizations, governments, and United Nations bodies. These demands often center on an appeal that the situation be taken up by the International Criminal Court ("ICC") via a Security Council referral or action by the Prosecutor herself. Although the ICC is now fully operational, its jurisdiction remains incomplete and its resources limited. Furthermore, the ICC is plagued by challenges to its legitimacy, erratic state cooperation, and persistent perceptions of inefficacy and inefficiency. Originally envisioned as a standing institution that would obviate the need for new ad hoc courts, it is now clear that the ICC cannot handle all the atrocity situations ravaging our planet. As such, there is an enduring need for the international community to create, enable, and support additional accountability mechanisms to respond to the commission of international crimes when the political will for an ICC referral is lacking, the ICC is inappropriate or foreclosed for whatever reason, or only a fraction of the abuses or perpetrators in question are before the ICC.

   This paper analyzes the accumulated experience with international, hybrid, and internationalized judicial institutions prior to and since the establishment of the International Criminal Tribunal for the former Yugoslavia ("ICTY") in 1993 (1) and the International Criminal Tribunal for Rwanda ("ICTR") in 1994. (2) This paper assumes the continuing utility of such mechanisms as tools to provide accountability for mass violence amounting to international crimes, particularly in situations requiring an alternative or supplement to the ICC. (3) It thus focuses on practical elements of institutional design, with particular attention to the origins, structure, jurisdictional limitations, financing, and procedures of the hybrid courts, dedicated chambers, specialized prosecutorial cells, and other accountability innovations established to prosecute atrocity crimes at the domestic level with some measure of international support, expertise, and personnel. From this historical and comparative analysis, the paper develops a taxonomy of models and a "menu" of elements that can be mixed and matched as new accountability mechanisms are under consideration for historical, current, and emerging atrocity situations, such as Syria, (4) the Central African Republic, (5) the Democratic Republic of Congo, (6) Colombia, (7) North Korea, (8) South Sudan, (4) Sri Lanka, (10) Libya," Burundi, (12) and even the July 2014 downing of Malaysian Air Flight 17 ("MH-17") over rebel-controlled Ukraine. (13)

   While past proposals advocating additional ad hoc mechanisms may have reflected skepticism about--or even hostility toward--the ICC, contemporary submissions (14) are more often premised on a pragmatic recognition of the limits of the ICC coupled with a firm fealty to the principle, and benefits, of positive complementarity. Rather than threatening to undermine the ICC, many proposals, if pursued, have the potential to contribute to a more integrated, differentiated, and impactful international justice system that will mount a stronger challenge to impunity by reaching more victims and perpetrators. At the same time, although this paper is dedicated to exploring the promises and drawbacks of hybridity, it cannot be gainsaid that there may remain a role for fully international tribunals to prosecute truly international crimes, i.e., massive crimes that transcend national borders and overwhelm national judiciaries.

   Although there have been important antecedents, the institutions of interest are part of a global trend of recent vintage toward international institution building and the judicialization of international relations. By way of background, the 1990's witnessed a sharp rise in the number of international, quasi-international, and regional tribunals established for the purpose of adjudicating a whole range of transnational disputes, including those involving international trade and investment, the law of the sea and piracy, human rights, the law of armed conflict, and property and restitution claims. (15) The revitalization of the Nuremberg promise that international crimes would not go unaddressed first found expression in the formation by the U.N. Security Council of two ad hoc criminal tribunals to address crimes committed during the disintegration of the former Yugoslavia and the genocide in Rwanda. (16) These events also occasioned a revival of post-WWII proposals for a permanent international criminal court. The establishment of the ICC in 1998, and its operationalization in 2002, seemed to mark the apex of this movement toward ensuring accountability for international crimes, although penal proceedings before ad hoc tribunals dedicated to particular conflict situations continued apace. (17) With the establishment of the ICC, it was largely assumed that there would be no more need for additional ad hoc institutions. (18)

   This assumption proved premature as it became clear that the ICC--given resource and jurisdictional constraints--would only be able to handle a fraction of the situations demanding justice around the globe. (19) As such, the international community has over the years constructed a network of additional international and internationalized tribunals dedicated to prosecuting violations of transnational and international criminal law committed by individuals who have participated in some of the most brutal conflicts waged by humankind. Attesting to the creativity of international actors committed to advancing the accountability norm, several varieties of ad hoc tribunal have emerged, often in response to perceived shortcomings of previous attempts. These new models, it was hoped, would cloak the proceedings with international legitimacy without requiring the construction from scratch of another expensive international institution. These next generation institutions have been called "hybrid" tribunals, because they possess qualities of both domestic and international courts. (20) For example, they were usually situated within the target state; were staffed by international and domestic personnel (judges, prosecutors, investigators, defense counsel, administrators, and support staff) working in tandem; and applied a mixture of international and domestic criminal law and procedures. (21)

   While some of these second generation institutions have enjoyed an independent legal personality, others are completely integrated into, or grafted onto, the national court system. Included within this continuum of hybridized institutions are purely domestic endeavors that are positioned, or attempt to position themselves, within the tradition of international justice by accepting international staff and technical assistance or by adjudicating norms drawn from international law. It is hoped that the infusion of international experience and expertise into domestic penal processes by way of mixed panels and prosecutorial units will offer capacity-building opportunities for national personnel, exert a "demonstration effect" for how justice should be administered, create binding precedent and opportunities for norm penetration that will guide future accountability efforts, magnify the expressive and constitutive function of the law, and counter corrupt tendencies in societies in which the rule of law is frail or has broken down. (22) Mixed tribunals are also meant to address some of the shortfalls of ad hoc stand-alone tribunals, including high start-up and maintenance expenses, their physical and symbolic distance from the events in question, the absence of local "ownership" within the constituencies they were designed to serve, and their lack of "technology transfer" to help rebuild or strengthen national judicial systems. (23) As compared to their predecessors, some of these more recent hybrid institutions have proven to be more agile in operation, better anchored in local and even regional norms, more representative of the local legal culture and community, and more attuned to "the complex domestic and social causes that led to the crimes." (24) As such, they enjoy greater cultural and procedural legitimacy.

   Despite their advantages over earlier models of international justice, these newer hybrid and internationalized institutions raise questions of their own when it comes to the imperatives of legitimacy, competency, and fairness--particularly when local personnel may be susceptible to political manipulation--where the rule of law is not fully established, or when domestic actors insist on certain concessions, such as the availability of in absentia proceedings or the death penalty. Moreover, as they become more idiosyncratic, these institutions risk reifying the more problematic manifestations of state sovereignty, contributing to the fragmentation of the law, and undermining the universalist ethos that undergirds the entire human rights edifice. Leaving the prosecution of international crimes to domestic systems, even with some international involvement, can enable parochial forms of victor's justice and give expression to illiberal impulses that the international community should not endorse through the provision of financial, technical, diplomatic, or other forms of support. As the international community and states embark upon new efforts at institution building, they should not lose sight of these potential pitfalls. This paper thus also recounts some cautionary tales from the many object lessons of international justice that should be borne in mind as new hybrid and ad hoc institutions are under contemplation.

   As this summary reveals, there is a high degree of diversity amongst these institutions. To be sure, some of this variation reflects...