Hybrid tribunals at ten how international criminal justice's golden child became an orphan.

• Author: McAuliffe, Padraig
• Position: P. 1-32

1. INTRODUCTION 1 II. BACKGROUND 2 III. IDEALIZING THE HYBRID TRIBUNAL 7 1. LEGITIMACY 11 2. CAPACITY-BUILDING 13 3. NORM-PENETRATION 15 4. HYBRID TRIBUNAL ADVOCACY IN CONTEXT 17 IV. THE UNPROMISING EMERGENCE OF HYBRID TRIBUNALS 22 1. MORE EMERGENCY THAN EXPERIMENT 24 2. FINANCE 31 3. LACK OF LEGACY PLANNING 32 V. EXPECTATIONS DASHED 34 1. CAPACITY-BUILDING 34 2. LEGITIMACY 40 3. NORM-PENETRATION 46 4. A BROKEN PROMISE 52 IV. QUALIFIED SUCCESS: RE-EVALUATING THE PERFORMANCE 53 OF THE TRIBUNALS 1. A FIGHT AGAINST IMPUNITY 53 2. RE-EVALUATING THE HYBRID MODEL 59 IV. CONCLUSION 63 I. Introduction

   In the decade that has passed since their foundation in 2000, the popularity of hybrid criminal tribunals as an avenue for transitional criminal justice has declined dramatically. While six such tribunals were created in the first half of the decade, none were created subsequently. Those that are completed or ongoing have generally been subject to strident criticism by scholars who initially hoped, or expected, that the combination of international and domestic law and expertise would cause the tribunals to appear more legitimate to the survivor populations concerned, and to leave a lasting legacy by strengthening national domestic justice systems. This article examines the nature of these claims by revisiting the circumstances and drafting history that gave rise to each tribunal. It identifies a divergence of expectations between those who assumed an inherent 'promise' in this novel structure to leave a legacy in the long-term, and those who actually negotiated the founding agreements for such tribunals with more short-term, security-driven concerns. It then goes on to contrast the optimistic and holistic assessment of their inherent potential with the dominant impetuses in international criminal justice policy of retributivism and non-impunity, which have marginalized the longer-term concerns supported by the hybrid model's initial advocates.

   Employing a comparative perspective to examine how and why the six hybrid tribunals established to date in East Timor, Kosovo, Sierra Leone, Cambodia, Bosnia and Lebanon fell so far short of initial hopes, this article reviews the performance of hybrid courts in the past decade to urge a reevaluation of their potential. After briefly contextualizing the present day position of hybrid courts in Part I, Part II summarizes the claims initially posited about the potential of hybrid tribunals to improve on the national/international dichotomy. Part III goes on to argue that the tribunals have not developed from reasoned application of such theories or a conscious process of experimentation to these ends; rather, they have been implemented as the result of forced compromises and haphazard bargains to fill pressing impunity gaps in emergency situations. It argues that wider, more holistic, rule of law development has been an afterthought at best. In effect, the cart was put before the horse. Arguments based on the potency of hybrid tribunals to have greater legitimacy before the affected public or to develop judicial capacity were idealized post-hoc rationalizations of what, in truth, were politically contingent compromises concerned more with expedient punishment than the reconstruction of justice systems. Part IV examines the experience of the tribunals in the intervening years. Particularly, it observes how these hopes of a publicly legitimate, capacity-building, and norm-promoting institution went unrealized in courts whose paramount concern was the fight against impunity. Part V, by contrast, reevaluates the underestimated success of the tribunals in providing accountability as a core rule of law value and a necessary precursor to stability in the post-conflict period. The article concludes that the hybrid tribunal remains worthy of the enthusiasm it once attracted, but not in idealized terms under which it can only disappoint. Instead, such tribunals should be re-evaluated in light of their role as versatile and complementary stopgap measures to fill impunity gaps occasioned by the politics of international tribunals and the inevitable weaknesses of the justice systems in post-conflict States, where they have hitherto found their greatest success.

2. Background

   The advent of the complementarity regime outlined in Article 17 of the 1998 Rome Statute appears to have cemented the choice of either the International Criminal Court or purely domestic trials as the primary avenues for criminal accountability in the wake of war or gross human rights violations. (1) The effect of the Statute's complementarity regime is that responsibility for investigation and prosecution of human rights abuses and breaches of international humanitarian law is delegated to ostensibly willing and able States on the rebuttable presumption that such efforts will be genuine. The ICC only steps in as a last resort when national justice mechanisms fail. International criminal justice policy is now dominated by a binary (some would argue antagonistic) choice between domestic and international prosecution. Where domestic prosecutions are impossible, the ICC has become the "definitive model" for the implementation of international criminal justice. (2) The Court does not so much "add another layer to the geometry of transitional justice" (3) as smother other institutional alternatives. While the Court has begun to develop a varied praxis and jurisprudence on issues of complementarity, animated by an ICC Prosecutor jealous of his jurisdiction, States like Sudan have made forceful assertions of the sovereign right to punish. The binary distribution of responsibility for punishing war crimes and gross breaches of human rights between national courts and The Hague is becoming ever more entrenched.

   This re-enforcement of the national/international dichotomy--a dichotomy that has animated debates on international criminal justice since Nuremberg--is the predictable consequence of extensive efforts by sovereignty-anxious States to limit the intrusive powers of the ICC. It may nonetheless have surprised many commentators, who saw the innovation of the hybrid tribunal model as a preferable option to purely domestic or purely international jurisdiction when it emerged in the interregnum between the adoption of the Rome Statute in 1998 and its entry into force in 2002. As recently as 2005, former ICTY judge Patricia Wald could extol the virtues of hybrid tribunals as "a phenomenal development" towards which international tribunals for trying war crimes and crimes against humanity were likely to evolve. (4) The hybrid character of the tribunals Wald so admired stemmed from the features they all share, in contradistinction to the Rome Statute's apparent binary choice. Both the institutional mechanism and the applicable law consist of a combination of international and domestic components. There is no single or monolithic model of hybrid tribunals, and all manifestations enjoy a diverse nomenclature. (5) All hybrid tribunals are to a greater or lesser extent grafted onto the national legal order, though the degree to which they are primarily national or international has generated interesting case law on questions of amnesty and jurisdiction. (6) Foreign prosecutors, judges and sometimes defence counsel work side-by-side with domestic equivalents, with the composition of the blend dependent on the political and legal exigencies of the State in question. (7) The law applied is usually a mix of international criminal law modelled on definitions contained in the Rome Statute and domestic law reformed to include international standards. The domestic crimes are usually those not included or covered differently in the Rome Statute on account of qualitative differences (such as murder or rape), plus crimes with additional resonance in the aftermath of repressive rule, such as kidnapping minors in Sierra Leone, or cultural crimes in Cambodia. The seat of the tribunal can alternate between the locus delicti State and a neutral location, but is usually located in the former.

   At the time of Wald's comments in 2005, the ICC Prosecutor was still casting his net forlornly for suitable initial cases to fight an incipient crisis of relevance. (8) On the other hand, the novel hybrid structure was on the ascent: the East Timor Special Panels, the Special Court for Sierra Leone (SCSL), Kosovo's Regulation 64 Panels, Bosnia's War Crimes Chamber (BWCC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) were underway. A Special Tribunal for Lebanon (STL) was soon to be created. For a brief period between 2002 and 2006 before the ICC became truly effective, it was widely believed that the hybrid tribunals could leave a legacy of holistic rule of law reform in the subject State above and beyond the broad sociological impact of trials. This legacy would be one of development of the judicial capacity of national judges and lawyers involved in the process, the incorporation of fair trial norms, and fostering cultural commitment to the courts in the reconstruction of the national judicial system. These gains would be made feasible by their more legitimate appearance in the eyes of the affected population. This 'promise' of the hybridized model made them, for some, a superior option for the trial of serious crimes than distant international tribunals like the ICTY or ICC. (9) At the time it was no by means unusual to view the hybrid tribunal as superior to purely international criminals courts on the basis of how their structure "collapsed" the "artificial distinction between the international and domestic." (10) Though many argued that hybridized tribunals and the ICC should operate in a complementary fashion, in this period it even appeared reasonable to posit that a future proliferation of the model could create damaging overlaps of jurisdiction and duplication of work to the detriment of the ICC. (11) The future of hybrid...