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

• Author: McAuliffe, Padraig
• Position: P. 33-65

The different hybrid tribunals established were the result of different bargains and were given very different mandates, which in turn resulted in differing structures. In this context, any wider rule of law legacy was an afterthought. Apart from the unique circumstances of the BWCC which will be discussed later, the "legacy ideal" was never specifically incorporated into the mandates of the tribunals, and so was marginalized as a priority: "Without an explicit mandate on the issue, the interpretation of legacy is, to a large extent, left to the discretion of individual actors. Many will automatically gravitate to an approach which focuses on the efficient disposing of cases. (180) The point made here is in a sense similar to one made by Nouwen, who, at an early stage in scholarly analysis of hybrid tribunals, outlined the fundamentally different legal foundations, history, staffing, and applicable law of the tribunals. She doubted that any uniform promise could be ascribed to a category of court that had only the very marginal common defining characteristic of mixed staffing. (181)

Given these highly compromised origins of the tribunals and the palpable lack of sufficient financial and diplomatic support to enable them to realize any potential beyond closing impunity gaps, why did such exaggerated and wishful hopes attach to them? One possible answer may lie in David Kennedy's theory of tool enchantment which posits that presumptions, biases, blind spots, and professional vocabularies of humanitarians lead them to attach an "inherent humanitarian potency" to a particular tool such as the hybrid tribunal model, which might explain the gap between the promise anticipated and the conditions on the ground. (182) He notes a tendency of academics and policymakers in the human rights community to attach to their ideas and institutions a humanitarian potential abstracted from the context of its application. International criminal law, with its noted tendency towards "judicial romanticism" about what trials can achieve, may be particularly susceptible in this regard. (183) Kennedy argues that the particular peacebuilding ecology of the area is overlooked as myths of progress are substituted for reasoned application of tools to contexts and the evaluation of consequences. (184) The gaps between theory and practice in the hybrid tribunals may bear out such an hypothesis, and provide an explanation for the recent diminution in advocacy.

By comparison with the more optimistic claims of their potential legacy at the emergence of the hybrid model, the more realistic position may have been that of Condorelli and Boutrouche who took a noticeably circumspect look at the purposes of the internationalized courts. They succinctly argued that "[such tribunals] aim to accomplish a certain objective and are bound to disappear once they do so." (185) The lack of legacy planning tends to vindicate this position.

5. Expectations Dashed

   With the cessation of the hybrid tribunals in East Timor and Kosovo by the middle of the decade, the impending completion of the Sierra Leonean process with the Charles Taylor trial, and observation of a combined eight years of investigation, prosecution and trial in Cambodia and Bosnia, one can assess how far short of initial hopes they have fallen. First, it is necessary to summarize the performance of each tribunal under each of the areas where they were deemed to have added value over purely national and purely international trials, bearing in mind that while individual studies are abundant, comparative study has lagged behind. The heterogeneity of approaches evident in the six hybrid tribunals is a testament to the flexibility the hybrid structure lends. What is apparent is that notwithstanding financial shortcomings and diplomatic weakness, each tribunal struggled when it came to making the predicted cultural, normative, and institutional impacts on domestic rule of law. It is these particularized dissatisfactions that appear to have led to a general dampening of enthusiasm for hybrid tribunals.

   1. Capacity-Building

      Take for example the failure to build capacity and the related phenomenon of "misplaced ownership" for which all hybrid tribunals have been criticized. Hopes for local ownership fell short of expectations in all three hybrids. Though it was argued that local ownership imported by the hybrid model should be maximized to the extent compatible with fair and competent trial in the pursuit of legitimacy and capacity-building, the reality at the time was that: UN officials were vetoing negotiations with Cambodia because local participation was too great, UNMIK was forcefully overturning decisions of Kosovar-only courts, and the Sierra Leone Government was relinquishing ever-greater control over the bench and prosecution to internationals. The great danger, overlooked for the most part in scholarly analysis, but readily apparent in the affected States, was that international dominance, even where tempered by local participation, could be perceived as imperialism little different to the ad hoc tribunals. This danger was heightened where international judges served in a majority, or where domestic prosecutors and defence counsel served merely as deputies to international figures who controlled proceedings. (186)

      Though it was assumed that hybrid tribunals would be genuinely cooperative, the tendency of both controlling partners (the UN and the domestic governments) in each tribunal has been to transfer as much responsibility to international actors as possible, with the exception of the BWCC. The Timorese Government considered the Special Panels to be a purely international project, given their preference to move on in their relations with Indonesia and focus on development (187) Ambiguity over ownership and allocation of responsibility in the process allowed both sides to avoid responsibility. (188) The Sierra Leone Government gave the UN almost full responsibility for the SCSL, and played little or no part in trials. It even deliberately scuppered opportunities for involvement, choosing to appoint only three national judges out of the possible four appointees they could make to the Trial and Appeals Chambers. (189) Indeed, they even went so far as to amend the Agreement to replace the words "Sierra Leone judges" with "judges appointed by the government of Sierra Leone." (190) The Government also chose to appoint a foreign Deputy Prosecutor when it was expected they would appoint a national. (191)

      In Kosovo, Regulation 2000/64 gave international actors the opportunity to take over entire cases without any domestic involvement. Contrary to the logic of progressive development where international involvement is phased out over time, each phase in UNMIK's judicial response to insecurity was marked by an increase in the presence of international judges and international control. This phenomenon ran counter to intuitions and early expectations among theorists in the area that as the domestic system is strengthened, international involvement would be decreased. Instead, what occurred was a reactive "linear reverse model" that initially gave responsibility to Kosovars only to then wrest it back. (192) Naarden and Locke argue that international prosecutors "often had a negative impact on the institutional development of local prosecutorial services, as the decision by an [international prosecutor] to assume a case frustrated the opportunity to 'test' the hypothesis that local prosecutors were unable or unwilling to take on that case." (193) Instead of responding to widespread dismay over ongoing impunity, over time international prosecutors moved from ethnically sensitive prosecutions of war crimes to those organized crime cases that local prosecutors were too fearful to take.

      The reluctance of each State (bar Cambodia and Bosnia) to assume ownership of the process increased the likelihood of marginalizing national judges and prosecutors into minor assistance positions, which could only serve to further diminish any sense of ownership in the process the local legal community had. The approach of the Dili, Freetown and UNMIK/Prishtina Governments reinforced what Perriello and Wierda call "the spaceship phenomenon"--where the court is seen by the people as an irrelevant, alien anomaly. (194)

      While domestic authorities were largely marginalized or disengaged in each Tribunal, international staff that dominated the process focused almost exclusively on the traditional goal of closing the impunity gap. Mooted schemes of instruction or skills transfer to domestic actors were left by the wayside. (195) The focus at all times was on securing convictions at the expense of integrating local professionals or leaving a legacy of competence. Mentoring and professional development played little role in any of the mixed tribunals, which were hybrid in form but never in ethos. This suggests that professional development and mentoring may invariably suffer diminished roles where successor justice is conceptualized primarily as a matter of combating impunity. Given the weaknesses of the Kosovar, Sierra Leonean and Timorese judicial systems after years of ethnically or politically motivated exclusion, it was expected by some commentators that every advantage for collaboration and development would be maximized. However, even in Sierra Leone, which arguably planned the most ambitious approach to engaging in holistic judicial reconstruction through the Special Court's embryonic legacy and outreach programmes, capacity-building was minimal because so few nationals were involved. This, in addition to the language problems that affected each tribunal, exacerbated the disconnection local legal professionals felt from the SCSL (196) The Court has been criticized for its failure to integrate Sierra Leoneans in positions of high responsibility, (197) and for its minimal impact on the national judiciary overall...