The building blocks of hybrid justice.

Author:Van Schaack, Beth
Position:V. Venue through IX. Conclusion, with footnotes, p. 240-280
  1. VENUE

    The Nuremberg and Tokyo trials were held in situ, notwithstanding the devastation wrought by WW (1) I. Although the Allied Control Council was headquartered in Berlin, in part to appease the Soviets, the city of Nuremberg was chosen for the trials because a courtroom with adjacent prison facilities had survived Allied bombing. (555) The fact that the city was also associated with the odious Nuremberg laws and Nazi party rallies added a symbolic touch to this choice. (556) In another emblematic selection, the Allies convened the Tokyo Tribunal in the former Imperial Japanese Army Headquarters Building. Hundreds of trials proceeded before military commissions and other panels in the various zones of occupation. (557)

    By contrast, the original ad hoc tribunals were not located in the situation countries themselves, although each tribunal eventually established local satellite offices and relationships with domestic counterparts. The war was still ongoing in the former Yugoslavia as the ICTY was conceptualized, so the tribunal was headquartered in the Netherlands, which was already playing host to a number of international courts and institutions. Although the genocide had been halted by the time the ICTR was under construction, there were ongoing ethnic tensions in Rwanda and lingering concerns about the security of witnesses and court staff. (558) After considering proposals from potential host states, the Council eventually located the ICTR in neighboring Tanzania. (559) This created a host of logistical difficulties not the least of which that there were no established flights between Kigali and Arusha, necessitating the procurement of a dedicated Beech craft. The distance also enabled Rwanda to more easily withhold cooperation (by, for example, refusing to facilitate the travel of witnesses and court staff and allegedly harassing defense counsel in country) in an effort to influence the work of the tribunal. (560) The distance between the two ad hoc tribunals and the affected societies gave rise to a pressing need to develop more formal community-based and media outreach programs, which often fell short of what was many observers felt was needed to bring the judicial proceedings to the people. (561) Although both ad hoes were empowered to sit elsewhere if "necessary for the efficient exercise of [their] functions," they did not avail themselves of this option. (562)

    The international community has since endeavored to build hybrid tribunals closer to the events in question. There are a number of obvious benefits to this approach, particularly when it comes to the ease of accumulating information that may become evidence in future proceedings and facilitating the meaningful participation of victims and witnesses. Remaining close to the target country also facilitates the integration of local jurists, lawyers, and other staff into the work of the tribunal. This lends greater local ownership and thus legitimacy to the process and also contributes to building domestic capacity. The initial decision to place the SCSL in Freetown was aided by the fact that the war had just ended, and a large U.N. peacekeeping force (the United Nations Mission in Sierra Leone, UNAMSIL) backed by a contingent of British Special Forces was on the ground to assist with security. (563) That said, many of the SCSL's international judges did not reside fulltime in the country, which limited their ability to interact with the local legal community. (564)

    Notwithstanding this preference for in-country proceedings, evolving events on the ground may necessitate adjustments, as revealed by the collective decision that it was too risky to try Charles Taylor in Freetown. (565) Once Taylor was in custody, the SCSL and newly-elected Liberian President Ellen Johnson-Sirleaf requested that Taylor be tried outside of Freetown for security reasons. (566) In UNSCR 1688, also issued under Chapter VII, the Council--with Russia insisting that the situation was unique and did not set a precedent for resolving similar situations in the future--determined that Taylor's continued presence posed a threat to peace in the sub-region. (567) The resolution, coupled with a 2006 Memorandum of Understanding between the Special Court and the ICC, facilitated the transfer of the legal proceedings against Taylor to a borrowed courtroom in the ICC. (568) Resolution 1688 also made clear that the SCSL would retain jurisdiction over Taylor so long as the Netherlands would facilitate the transfer of witnesses, etc. The Netherlands, in turn, agreed to Taylor's transfer to its territory only if another state committed to imprisoning him in the event he was convicted and sentenced. (569) Taylor is now serving his sentence in the United Kingdom, after the SCSL rejected his motion to be transferred to a prison in Rwanda. (570)

    An important innovation on venue can be found in the mobile courts developed to bring justice to remote areas in eastern DRC that have been ravaged by war but are far from any formal justice institutions. (571) These courts are creatures of domestic law and come in both civilian and military varieties. The latter--which can assert jurisdiction over civilians under certain circumstances (572)--had exclusive jurisdiction over international crimes until the 2013 passage of a Law on the Organization, Functioning, and Jurisdiction of the Courts, which appeared to shift jurisdiction to the civilian courts. (573) The military courts are technically governed by the Military Penal Code, (574) which contains provisions on genocide, war crimes, and crimes against humanity that, while passable, depart from standard international law definitions in certain ways and seem to conflate the latter two crimes. (575) Given this confused legal framework, the mobile military courts directly applied the provisions of Rome Statute, (576) which the DRC had ratified but had not yet fully implemented until recently. (577) The mobile courts have largely focused on sexual and gender-based violence ("SGBV"). (578) Controversially, the U.N. Development Program will only fund a mobile court session if it includes SGBV charges; (577) as a result, cases involving other serious crimes (murder, pillage, the use of child soldiers) have gone unprosecuted. (580)

    These trials rely heavily on international assistance. (581) The American Bar Association's Rule of Law Initiative ("ABA ROLI") and other donors provide training for court staff, help to secure lodging and transportation for witnesses (which diminishes adjournment rates), and offer pro bono legal assistance to victims and defendants. (582) The mobile courts, which also work with MONUSCO and other local partners, offer a high degree of local access and ownership while helping to build legal capacity. (583) They also coordinate with legal clinics to ensure cases are trial-ready; provide appropriate referrals to non-legal organizations that can offer medical, social, and economic assistance to victims; and engage in community education and outreach. (584) So far, evaluations of the mobile courts have been cautiously optimistic. (585) Similar mobile models have been deployed for ordinary crimes in Sierra Leone, Somalia, Central Africa Republic (before the recent crisis), and Timor-Leste. (586)

    Locating a mixed tribunal in the affected country depends heavily on the existence of a functioning and secure judicial system and related institutions. The Special Panels for Serious Crimes operated within the District Court of Dili in Timor-Leste, but the lack of local capacity seriously hindered the ability of these panels to function fairly and effectively. (587) This will likely be an issue with respect to the new Special Criminal Court for CAR, which will be located in Bangui, although it is empowered to sit elsewhere under exceptional circumstances. (588)


    Determining the scope of the particular justice mechanism involves several major decisions concerning the tribunal's subject matter, temporal, geographic, and personal jurisdiction. In particular, statute drafters must identify prosecutable crimes with the option of drawing from international law (with prior statutes incorporating both treaty and customary international law), domestic law, or a combination of the above. Tinkering with the court's temporal and geographic reach offers a way to focus the tribunal on particular incidents or episodes of mass violence but also to exclude consideration of politically-contentious events for which there may be no international consensus around the desirability of prosecution. Architects generally also place limits on the court's personal jurisdiction in the sense of the type or status of defendant who can be prosecuted. In this regard, the availability vel non of status and functional immunities has arisen as a point of contention.

    1. Subject Matter Jurisdiction

      The Charters of the IMT and the Tokyo Tribunal established the original ICL canon by allowing for the prosecution of war crimes, crimes against humanity, and crimes against the peace. (589) Although existing law-of-war treaties inspired the war crimes provisions, the latter two crimes were novel and needed to be defined. Drafters included a critical limiting principle in the definition of crimes against humanity: while allowing for the prosecution of crimes against humanity committed "before or during the war," such crimes would only be prosecuted if they were committed "in execution of or in connection with any crime within the jurisdiction of the Tribunal," i.e., war crimes or crimes against the peace. (590) This formulation became known as the "war nexus," and it is apparent that the Charter's drafters and the Nuremberg Tribunal itself considered the war nexus necessary to justify the extension of international jurisdiction into what would otherwise be acts within the domestic confines, and thus jurisdiction, of a state. (591) As a result of...

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