The building blocks of hybrid justice.

• Author: Van Schaack, Beth
• Position: II. Origins F. A Selective Multilateral Treaty through IV. Staffing, p. 204-240

6. A Selective Multilateral Treaty

   The ICC is the creature of a multilateral treaty, but one open to all states. (273) Besides the regional tribunals discussed above, it has been rare for a subset of states since Nuremberg to form an "international" tribunal by way of multilateral treaty. One partial precedent is found in the mixed slavery courts established by Great Britain in the early 19th century in an effort to eradicate the slave trade, a forgotten chapter in the story of international criminal law rediscovered by scholars. (274) The British strategy involved executing a network of bilateral treaties with maritime states, including Spain, Brazil, the Netherlands, and Portugal. (275) These treaties gave parties the right to search and condemn vessels engaged in the slave trade and to subject them to trial before a mixed commission featuring judges from the capturing nation, the flagship nation, and potentially a "neutral" nation. (276) The mixed commissions were established in treaty-partners' ports-of-call, including Freetown, Sierra Leone; Havana, Cuba; Rio de Janeiro, Brazil; and Suriname. (277) This network of otherwise bilateral treaties established something close to a global enforcement regime even without the involvement of France (which never joined) and the United States (which joined late in the game).

   British overtures to the United States met resistance, due in part to antagonism toward granting a mutual right to search ships on the high seas (a central pillar of the British approach), but also to perceived constitutional infirmities, notwithstanding the U.S. Constitution's expansive Treaty Power. (278) The United States preferred for U.S. vessels captured by the British to be returned to the United States for trial. It should be noted that U.S. opposition did not reflect any desire to preserve or protect the slave trade; although slavery remained legal in the United States at the time, Congress had already declared the slave trade to be a form of "piracy" punishable by death. (279) In 1862 and in the midst of the Civil War, the United States finally assented to the British proposal and entered into what became known as the Lyons-Seward Treaty. (280) Mixed courts involving the United States were established in New York, Sierra Leone, and Capetown. (281) By this time, however, the slave trade had been largely suppressed, and these courts were never activated. (282)

   These tribunals were not strictly penal in nature. Rather, they "had jurisdiction only over the ships and their cargo; the crew would either be let loose or repatriated for prosecution." (283) Later, "the mixed courts were authorized to hold slave crews in custody until they could be transferred to national authorities for trial." (284) The ships were generally auctioned off, with the proceeds going toward the expenses associated with the courts, the two governments, and the captors as prize money. (285) As such, these courts administered what were more in the nature of in rem actions, although it has been argued that "[c]ondemnation of a vessel, while nominally in rem, can be criminal when done to punish the owner" (286) as with civil forfeiture laws. (287) There was no right to appeal. (288) All told, upwards of 80,000 would-be slaves were freed by these mixed courts over the course of their existence. (289)

   The Lockerbie Tribunal provides another notable example of the use of a treaty amongst a limited group of states to create an accountability mechanism. (290) Following the bombing of Pan-Am Flight 103 over Lockerbie, Scotland, in 1988, an international investigation led to the conclusion that the bombing had been the work of two Libyan agents. (291) The United Kingdom and the United States both issued indictments in 1991. (292) Libya, however, refused to extradite its nationals, asserting the right to prosecute them itself under the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, which contains an aut dedere aut judicare provision at Article 7. (293) In an unprecedented move, the Security Council demanded that Libya cooperate with the investigations and surrender the suspects to either the United Kingdom or the United States for trial. It also imposed sanctions on Libya for non-cooperation. (294)

   Following a decade of negotiations and a foray to the International Court of Justice (ICJ), (295) an agreement was reached in 1998 (296) that would allow the suspects to be prosecuted in a neutral forum: a decommissioned U.S. army base in the Netherlands staffed by a panel of Scottish High Court judges (in lieu of a jury) applying Scots law. Although the Security Council blessed the arrangement, (297) implementation required the passage of Scottish legislation to enable a Scottish court, possessing a full juridical personality and enjoying all applicable privileges and immunities, to sit extraterritorially. (298) The United Kingdom covered any costs incurred by the Netherlands. (299) The deal also enjoyed the endorsement of the Organization of African Unity (now the African Union), the League of Arab States, the Non-Aligned Movement, and the Organization of the Islamic Conference. (300) As had been arranged in advance, upon the appearance of the two accused in the Netherlands, the Security Council suspended the sanctions against Libya, which had begun to erode in any case. (301) The Lockerbie Tribunal convicted one of the two defendants in 2001, but he was released early on compassionate grounds when he developed terminal cancer; he died in 2012. (302) Libya also acknowledged responsibility for the bombing and paid reparations to the victims' families. (303)

   This arrangement had some of the features of the Nuremberg Tribunal in that it was established by the agreement of a small number of implicated states. It embodied a negotiated compromise of competing entitlements to jurisdiction as between Libya (which asserted the nationality principle), Scotland (entitled to invoke the passive personality and territorial principles), and the U.S. (passive personality, but also territoriality given that Pan Am was a U.S. airline). By involving fewer states, such arrangements are potentially easier to negotiate. The similarities between Lockerbie and Nuremberg end there, however. Besides the obvious difference in scope, the Lockerbie Tribunal also proceeded with the consent--albeit coerced by crippling sanctions--of the nationality state.

   In a similar initiative, the Secretary-General's Special Adviser on Legal Issues Related to Piracy off the Coast of Somalia, Jack Lang, and others have proposed the establishment of an extraterritorial Somali anti-piracy court in a secure location to act as a "focal point" for regional and international prosecutorial support and to help strengthen the rule of law in Somalia. (304) It was suggested that the premises of the ICTR might be a suitable temporary venue given the winding down of that tribunal's activities. (305) This extraterritorial Somali court, which would be staffed with internationally trained Somali and diaspora judges, (306) would be the product of multiple overlapping treaties between Somalia, the host state, and the apprehending states. (307) Under Lang's proposal, the court would work in tandem, and potentially share a prosecutorial office, with secure specialized chambers in the courts of the autonomous regions of Puntland (deemed the "epicenter of piracy") and Somaliland. (308) It would eventually decamp to Mogadishu. Funding was to come from the U.N. Office on Drugs and Crime, the U.N. Development Programme ("UNDP"), International Maritime Organization ("IMO"), and a Trust Fund set up by the Contact Group on Piracy off the Coast of Somalia ("Contact Group"). (309) Although Somalia has not been supportive of this plan, the Security Council has kept it under consideration. (310) To date, the Council has primarily stressed the need for cooperative legal action and focused on coordinating assertions of domestic jurisdiction and efforts to apprehend and transfer individuals for prosecution, as discussed below.

   A model similar to the Lockerbie solution is under consideration for the downing of Malaysia Air Flight 17 ("MH-17") as a way of circumventing Russia's veto of a Dutch/Malaysian proposal to establish an international tribunal. (311) If such a Lockerbie-style tribunal were to move forward, at a minimum, the most affected states would include Ukraine, as the territorial and potentially nationality state; Malaysia, as the state of registration as well as the state of nationality of the victims; and the Netherlands (and others), also invoking the passive personality principle (two-thirds of those killed were Dutch). (312) These states could, in essence, "pool" their respective jurisdictional competencies. Such a tribunal could also be premised on the collective exercise of universal jurisdiction if the attack amounts to a war crime or an act of terrorism subject to universal jurisdiction. (313) The nationality of the perpetrators is unknown, which complicates the question of whether Russia's assent would be required, as a legal or practical matter, for any tribunal to be established, especially given that the acts in question may be subject to universal jurisdiction. Assuming Russia would block any decisive action by the Security Council, additional international legitimacy could be afforded to this effort by the U.N. General Assembly. (314)

7. Occupation Courts

   International tribunals have also been created as part of a postwar occupation in order to deal with the problem of captured war criminals. The United States created the Tokyo Tribunal, for example, by executive fiat while occupying the country after WWII. (315) In addition, the victorious allies staged thousands of prosecutions in military commissions and courts in their respective zones of occupation. (316) In the European Theater, the Control Council, comprised of the...