Transitional justice in Afghanistan: the promise of mixed tribunals.

AuthorDickinson, Laura A.

In the wake of the September 11th attacks on the World Trade Center and the Pentagon, how to apprehend, question, and punish the perpetrators remains a difficult question to answer. Despite the United States-led military response in Afghanistan, which ousted the Taliban regime, Osama bin Laden and the leaders of al Qaeda remain at large. United States' forces in Afghanistan captured and then jailed several hundred suspects on Guantanamo Naval Base, in Cuba, but the relationship between these suspects and al Qaeda is unclear. (1) United States allies, such as Great Britain, France and Germany, also detained individuals suspected of supporting the September 11th attacks and other terrorist plots. (2) Even countries long considered hostile to the United States, such as Syria, have detained and questioned suspects. (3) Yet with a few exceptions, most of those apprehended appear to have played only a minor role, if any, in the September 11th plot itself. And on U.S. soil, while authorities had at one point detained over 1,000 people believed to be involved in the attacks, only a handful appear to have any link at all to al Qaeda or the September 11th attacks. (4)

If capturing suspects has been difficult, the question of how (or whether) to hold these suspects individually accountable has proven to be even more vexing. The Bush administration has not pursued a consistent course but has, in the main, eschewed the usual criminal law approaches in favor of military solutions. For example, the suspects apprehended in Afghanistan and brought to Guantanamo Naval base are now languishing in legal limbo. The administration asserts that these detainees, who are not U.S. citizens, will not be tried in U.S. courts. (5) Rather, administration officials suggest that they will be brought before newly established military commissions, where they would be afforded fewer rights than would be provided in ordinary criminal proceedings or even in military courts-martial. (6) The administration has also suggested that some of the Guantanamo detainees might be returned to their home countries, or, possibly, not tried at all but rather held until the end of hostilities, whenever that might be. (7) At the same time, administration officials have refused to be strictly bound by the Geneva Convention's requirements for the treatment of detainees. Indeed, Secretary of Defense Rumsfeld has said that the standards imposed by the Conventions will be observed only "for the most part," and that detainees will not be given individual hearings to determine whether they should be awarded prisoner of war status. (8)

Meanwhile, authorities treat suspects captured in the United States inconsistently. Zacarias Moussaoui, a non-citizen accused of participating in the September 11th plot itself, is being tried in federal district court. (9) But Jose Padilla, an American citizen suspected of participating in a new al Qaeda plot, was transferred to military detention outside of the United States. (10) Suspects captured by other governments also face haphazard justice. Some are charged with crimes and will be tried, while others are simply held and questioned. (11)

Although some commentators support the administration's proposed use of military commissions, (12) few condone the indefinite detention of suspects without any form of adjudicatory procedure. Many criticize the use of the military commissions altogether, even if limited to suspects captured in the field of battle, or if established with protections for the rights of the accused. (13) Critics argue that, instead, suspects should be tried in existing domestic courts and that no new institutions are necessary. (14) Others, myself included, have suggested that some form of international forum would provide the best method for holding at least those most responsible for the September 11th attacks accountable for their actions. (15) Yet in light of this administration's hostility to international processes, it seems highly unlikely that, despite its advantages, a full-fledged international court will be used to try those accused of planning and carrying out the September 11th attacks.

Moreover, the question of where, and how, to try suspects raises a series of deeper questions about the role of criminal accountability in times of conflict and war. Scholars writing about the response to the September 11th attacks note that the current conflict, between the United-States-led coalition on the one hand, and terrorist organizations such as al Qaeda on the other, does not fit neatly into either a "war" paradigm or a "criminal justice" paradigm. (16) In such circumstances, what rights and procedures are due to individuals who have engaged in atrocities? What are the imperatives of victims who demand accountability? Do procedures to adjudicate individual criminal responsibility have a role to play in containing a current conflict, in deterring future conflict, or in inculcating norms? Do international proceedings do a better job of inculcating such norms, or are domestic processes better suited to that task? Is the effort to promote norms through international proceedings an exercise in imperialism? In a globalized world, does it even make sense to refer to international and domestic proceedings as distinct, or might such processes be better termed transnational?

Significantly, these questions are precisely the ones that scholars in the emerging field of transitional justice have been asking over the past decade about mass atrocities in general. Although these scholars do not focus on the question of terrorism specifically, they study the ways in which societies that are attempting to confront past and lingering mass atrocities do so through a variety of means: criminal trials, truth commissions, civil compensation schemes, lustration programs, and so on. (17) An exploration of how the insights derived from this body of work might be applied to the problem of terrorism in the wake of September 11th would be a fruitful source of further research.

This Essay is an effort to initiate that process by examining an emerging transitional justice mechanism--the mixed domestic-international tribunal--and considering the role such tribunals might play in the fight against terrorism. Mixed tribunals, courts in which international and local judges sit side by side, have already been used with some degree of success in Kosovo and East Timor, and one has recently been established in Sierra Leone. The hybrid nature of these courts may be an advantage when considering issues of accountability in post-Taliban Afghanistan. A purely domestic process is probably impractical in light of the limited capacity of the indigenous legal system. And, given the sheer number of detainees and local distrust of international processes, a hybrid tribunal is more realistic than the establishment of a purely international court. Moreover, a hybrid local-international tribunal in this context may be politically palatable even to those within the Bush administration most in favor of military commissions and would at least pave the way for some form of multilateral justice mechanism in response to the September 11th attacks.

This brief Essay does not attempt to discuss all of these issues in detail. Instead, I hope to delineate the recent history of this emerging accountability mechanism and suggest its possible use in the current climate. (18) I will begin, first, by describing the nature of these tribunals in the most notable post-conflict contexts in which they have been used: Kosovo and East Timor. Second, I will compare these hybrid tribunals to international tribunals, on the one hand, and domestic tribunals, on the other, and explain why, in comparison to each, the mixed tribunals hold so much promise. Finally, I will discuss the implications of using such tribunals in a setting such as post-Taliban Afghanistan.

  1. Prior Use of Mixed Tribunals

    In Kosovo and East Timor, the international community worked with local populations to experiment with a relatively new form of accountability for past human rights violations: criminal trials before mixed domestic-international courts. For the most part, these courts emerged as ad hoc solutions in emergency situations, the product of innovative thinking and collaboration among a variety of international and local actors forced to make quick decisions and tough compromises in the face of severe political and economic constraints. In both of these instances, international actors stepped in to keep the peace in territories ravaged by conflict and mass atrocity, at a time when detainees suspected of committing those atrocities were languishing in makeshift detention facilities without any prospect of trial. Domestic courts were not functioning, and international courts were either ill-equipped to handle the number of cases at issue, or were unlikely to be established due to financial or political obstacles. Releasing the suspects into the general population would have led to violent reprisals, public outcry, and general mayhem. Under these circumstances, the establishment of hybrid domestic-international courts appeared to offer a reasonable solution to a pressing and seemingly intractable problem.

    Because these courts are the result of on-the-ground innovation rather than grand institutional design, the precise form of each tribunal or set of tribunals has varied considerably. Nonetheless, in both Kosovo and East Timor the courts share an essential hybrid structure: both the institution and the applicable law consist of a blend of the international and the domestic. Foreign judges sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local lawyers working with those from other countries. These judges apply domestic law that has been reformed to include international standards. This part discusses the process by which each hybrid court was established...

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