Part I of the Article can be accessed here.
c) East Timor Special Panels for Serious Crimes[i]
United Nations Transnational Administration in East Timor (UNTAET) was established by Security Council to resolve the violence that was instigated by pro-Indonesian militia after the ending of the 24 year-long Indonesian occupation regime.[ii] The repercussions of the mass atrocities (rape, murder, torture, crimes of aggression) were such that the domestic courts lacked efficient lawyers and serious crimes like these demanded accountability.
As per the Regulations issues by the UNTAET, ‘serious crimes’ were adequately adjudicated by a panel of judges – two international judges and one Timorese judge, sitting within East Timor. The working mechanism of this hybrid tribunal was such that it relied on ICC’s guidance to regulate and comprehend crimes against humanity which was done so as to ensure efficient adjudication. Thus, this tribunal recognized crimes against humanity as a systematic and widespread attack against civilians and that the same must be appropriately punished. The hybrid tribunal applied law of East Timor bearing in mind the international treaties and the recognised principles and norms of international law of armed conflict. Later, on May 20th, 2002, the UNTAET was replaced by the UN Mission of Support in East Timor, but the UNTAET Regulations were still in force. After a series of 55 trials which involved conviction of 84 individuals, the dispute saw an end.
With the motive to fulfil long-term objectives of the state (to establish a viable system of self-government which would include a decentralized state building approach that focused on training and participation of East Timor), the active involvement of domestic actors and on-site forums was essential. Henceforth, relying on hybrid tribunals to adjudicate the issue was an efficient and practical option.
d) Continuing relevance of Hybrid Courts and recent developments
Hybrid tribunals have become ‘a consolidated feature of the contemporary post-conflict resolution toolbox’. To overcome the limitations of both the ICC and domestic courts, the establishment of hybrid tribunals has time and again proven to be crucial. In 2015, several hybrid tribunals or internationalized criminal justice systems were established, namely: Special Criminal Court for the Central African Republic (CAR), Special Jurisdiction for Peace in Colombia, the African Union-backed hybrid court for South Sudan.
Special Criminal Court for the Central African Republic (CAR)
On June 2015, former interim President of the Central African Republic promulgated a law which led to creation of a Special Criminal Court with an intention to investigate and prosecute grave human rights violations that were being committed since 2003. The issue intensified during an armed conflict that broke between the Islamic rebel group of the Séléka and Christian Anti-Balaka militias, in order to overthrow President Francois Bozizé in 2012. The situation was under the ICC’s scrutiny since 2004. This was the first time that a hybrid tribunal was set up where the issue was already under investigation by the ICC and was marked as an ‘unsteady first step towards partnership between hybrid courts and the ICC’. This is because the Special Court acted as a part of CAR’s judicial system and its relationship with the ICC fell within the ambit of Article 17 of the Rome Statute, which facilitates domestic prosecution. This case could be reflected as an example for horizontal co-operation between the hybrid courts and the ICC in adjudicating and prosecuting International crimes. It can be noted that the relevance and reliance on hybrid courts is still integral; whereas the co-operating working mechanism with the ICC solely depends on the matter in hand.
Hybrid Court for South Sudan
The Peace Agreement between Salva Kiir Mayardit, the President of South Sudan and Reik Machar, the first Vice-President and military leader of Sudan People’s Liberation Movement, politically put an end to the armed conflict that was proceeding since 2013. An entire section of the agreement spoke about the establishment of a hybrid court ‘to investigate and prosecute individuals bearing the responsibility for violations of international law and/or applicable South Sudanese Law’. However, the responsibility of the establishment of a hybrid Court for South Sudan was placed on African Union because South Sudan did not ratify the Rome Statute and also the Security Council did not consider a referral to the ICC. Recently, South Sudan approved the establishment of the institution and of a Hybrid Court, as enshrined in the Peace Deal and this was done with the help of aide and measures designed by African Union. This portrays an attempt to set up a holistic and complementary mechanism in order to achieve sustainable peace through means of recognition and accountability for international crimes.
A. Criticisms of hybrid tribunals
The critics of hybrid tribunals have pointed out a significant infrastructure issue. Based on all the cases explained earlier, it can be concluded that the aftermath of violent war crimes could severely damage the resources within that particular state. Additionally, not all domestic states are well equipped with local lawyers and judges who are completely well versed with the international laws and regulations that could be relied upon to address the mass atrocities in question. Using the local criminal law to its entirety would not be an effective solution because such domestic codes ‘do not always capture and comprehend all complex international crimes which could result in minimizing the wrongs suffered’. It is undeniable that these inadequacies do act as a deterrent to achieve utmost justice but this issue is usually resolved by striking a certain amount of balance between the involvement of domestic and international actors. So how do you tackle this issue? For instance, in the case of Sierra Leone, this issue can be tackled by appointing domestic and international judges. To be more specific, three judges served in Trial Chambers (two were appointed by UN Secretary-General and one by Sierra Leone government and five judges served in the Appeals Chambers (three by the UN and one by the local government).
A noteworthy criticism pertaining to hybrid tribunals is with regard to its lack of uniformity and consistency. This occurs mostly because of the nature of the international crimes and the way in which they are adjudicated. In the case of Adolf Eichmann[iii], the Israeli Supreme Court rightly highlighted that international crimes are “acts which damage international interest; they impair the foundations and security of the international community; they violate the universal moral values and humanitarian principles that lie hidden in the criminal law systems by civilized nations”. Hybrid tribunals have also condemned certain crimes within their jurisdiction knowing how they ‘not only affect the interests of one state, but affect conscience of entire mankind’. However, the universal jurisdiction doctrine[iv] does facilitate in adjudication of such international crimes by hybrid tribunals, if domestic courts are adequately equipped.
Lack of consistency in the prosecution of international crimes and imposition of punishments for the same occurs because each domestic law differs from state to state. “A permanent outsourcing to domestic courts may simply result in discrepancies in the substantive law, as international crimes are incorporated, interpreted and applied in ways that inevitably vary from one country to the other …”. For example, the Iraqi tribunal did not apply the same law as the Sierra Leone tribunal. To ensure rational and fair criminal justice system, it is essential to ensure consistency in punishment. Although at first instance, criminal adjudicating bodies such as ad hoc Tribunals or International Criminal Court may seem more consistent, this system still remains flawed as elaborated in the first part of the paper. It was observed in the case of Sierra Leone that hybrid tribunals can achieve consistency by striking a balance between domestic laws and internationally recognised treaties, norms and standards.
B. Advantages of hybrid tribunals
The essential feature of hybrid tribunal is its flexibility which allows it to cater to the demands of the such violent war crimes, as explained in previous section. Each hybrid tribunal respects the domestic actors while upholding the recognized international norms and principles. Theoretically, hybrid tribunals incorporate a few aspects of the formal international criminal justice models and simultaneously include domestic actors and promote domestic norms. Practically speaking, benefits of hybrid tribunals outnumber the criticism regarding uniformity and consistency. The mechanism followed by hybrid tribunals respects the state sovereignty while promoting and acknowledging the international norms and laws. To illustrate on this point further, bearing in mind Hashim Abdul Raham Al-Shalabi’s concern about how foreign judges’ presence could tarnish Iraqi sovereignty and could undervalue Iraqi judiciary, the Iraqi tribunal was established on “self-evident truth that countries have judicial authority over crimes that are part of international law…”
The Iraqi tribunal’s flexible structure demonstrated that it respected sovereignty while understating the magnitude of international war crimes. The hybrid tribunal’s goal behind the emphasis on state law is solely based on the “necessity of reaffirming regional sovereignty”. These hybrid tribunals pay due respect to domestic law but that does not supplant international norms and principles, rather it supplements them and this manner of moderate international involvement guarantees international acceptance and accountability in trials. This is to ensure and promote international peace while optimally utilising domestic resources.
Furthermore, this Tribunal was set up in its own domestic state because of the rule which states “crimes committed inside national territory should be tried in those hands”. As discussed earlier, the International Criminal Court or the ad hoc tribunals remove the crime and the criminal to a foreign forum, whereas the hybrid tribunals promotes domestic forums. This is an effective mechanism because “firstly, the state in which a crime is committed is usually the best place to find and recover evidence and secondly, the legal system that is known by the resident or citizen accused is generally preferred because he/she is familiar with it.” If a domestic state is a corrupt one and is incapable to provide an adequate prosecution for such heinous international crimes, then relying on international forums could act as an alternative. Yet again, hybrid tribunals are efficient because they ensure close nexus with crime and the place where it has been committed. This process provides accessibility and fair opportunity in investigation and adjudication which consequently facilitates in achieving justice that caters to the affected population.
The working procedure of hybrid tribunals is such that it tries to settle all such disparities and dichotomy that exists between international institutions and state sovereignty. This significant predicament is solved by hybrid tribunals as they incorporate the elements of both domestic and international law and norms to adjudicate a crime in question. These hybrid tribunals focus on building a strong structure and an efficient adjudicating mechanism for international crimes, where a domestic state relies on international institution present that does not overpower that particular state’s sovereignty and independence, thus ensuring a fair and unbiased trial.
Endnotes: [i] S. de Bertodano, ‘East Timor: Trials and Tribulations’, in Romano et al., Internationalized Criminal Courts, 79; S. Linton (2001), ‘Prosecuting Atrocities at the District Court of Dili’, Melbourne Journal of International Law, 2, 414. [ii] Id. [iii] Attorney General v Adolf Eichman, (1961) Crim. Case No. 40/61. [iv] Prosecutor v Tadic, Case no. IT-94-1, ICTY Appeals Chamber 15 July, 161-168 and 185-229.
Sanjana Jagadeesha is a PG student at the University of Edinburgh.
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