ADVANTAGES AND DISADVANTAGES OF THE HYBRID SPECIAL COURTS

[Justice forTamils]

ADVANTAGES AND DISADVANTAGES OF THE HYBRID SPECIAL COURTS

The process leading to the establishment of the hybrid special domestic international courts in Sri Lanka, while somewhat improvised, nonetheless reveals a few potentially enduring positive attributes of this newly emerging form of accountability. Of course, the success of any effort to confront past atrocities through criminal trials, will depend on the particular social, political, and cultural context.

The need for such an effort to confront the past, and the role it might play in establishing peace and democratic institutions of governance likewise varies considerably depending on the unique circumstances. The Sri Lankan war crimes cases shares similarities with other potential post-conflict situations, however, that one can use it to draw a few tentative conclusions about the promise that mixed tribunals might hold in other settings.

Until recently, the primary mechanisms for imposing individual criminal responsibility for grave human rights abuses fell into two categories. Either new regimes attempted domestic trials, or the international community established international tribunals to hold wrong doers accountable. Both of these approaches, however, have significant limitations. Such limitations can be conceptualised along two axes:
first, problems of legitimacy
second, problems of capacity-building.

Focusing on the lessons learned, this part first outlines the problems of both purely domestic and purely international tribunals, and then suggests ways in which hybrid special domestic-international courts might address some of these problems.

Legitimacy Problems

In some circumstances, hybrid special domestic-international courts may have greater legitimacy in the adjudication of serious human rights crimes than either purely domestic trials, on the one hand, or purely international processes on the other. In post-conflict situations, the legitimacy of domestic institutions is often in question. Of course, the precise nature of the legitimacy crisis varies and is inseparable from the unique history and culture of Tamils.
With respect to the judiciary, which has often corrupted and sustained crippling injustice. In addition, the remaining available personnel is likely to be severely compromised by association with the prior regime or lacking in essential skills. Judges and prosecutors from the prior regime—who failed to prosecute or convict murderers, torturers, or ethnic cleansers—may still remain in place, or, alternatively, the new regime may have replaced the old personnel almost completely.

In Jaffna, not only was the physical infrastructure of the legal system severely damaged by the conflict, but the system was also tainted by the former oppressive regime, undermining public confidence in, and the broad societal legitimacy of, the system as a whole. Indeed, the justice system had been run by perceived oppressors and ethnic Tamils had been systematically excluded from the system.

Advantages of Hybrid Tribunals

Hybrid tribunals, as suggested by their use in Kosovo, Eat Timoor and Siera Leone can offer at least partial solutions to both these legitimacy and capacity problems. The sharing of responsibilities among international and local actors in the administration of justice, particularly with respect to accountability for serious human rights crimes, helps to establish the legitimacy of the process as well as strengthen the capacity of local actors.

In Sri Lanka, the introduction of international judges and prosecutors to cases involving serious human rights abuses will enhance the legitimacy of the special hybrid court process, both in the eyes of the local population and the international community. The initial failure of U.N. authorities to remain with the local population during the final stages of the war sparked public outcry.

The appointment of foreign judges to domestic special courts to sit alongside local judges, and the appointment of foreign prosecutors to team up with local prosecutors, will help to create a degree of collaboration that generally enhance the perception of the institution’s legitimacy. By working together and sharing responsibilities, not only were perceptions enhanced, but international and local officials necessarily will begin consulting with each other.

At the same time, the appointment of international judges to the local courts in these highly sensitive war crime cases will help to enhance the perception of the independence of the judiciary and therefore its legitimacy within a broad cross-section of the local population. In Sri Lanka the previous attempts at domestic justice had failed to win support among Tamils. In contrast, once the special court began and the verdicts of the hybrid tribunals will alleviate some impartiality concerns, among Tamils.

The sharing of responsibilities among local and international officials is, of course, not a complete cure for legitimacy problems. Indeed, such hybrid relationships can raise new questions about who is really controlling the process. When international actors wield more power than local officials—when the majority of judges on a given panel is international, for example, or when the local prosecutors merely serve as deputies to international prosecutors—some may charge that the international actors control the process, and that such control smacks of imperialism.

On the other hand, too little international control may lead to concerns about the independence and impartiality of overly locally-controlled processes. The shared arrangement does offer more promise of working out these difficulties than a purely domesticated process.To be sure, hybrid courts face difficulties in capacity-building. A lack of resources has proven to be the most serious problem so far. Hybrid courts are often given an enormous mandate without receiving sufficient funding to carry out that mandate.

Court personnel lack even the most basic equipment necessary for them to do their jobs, translators and other administrative personnel are in short supply, and, perhaps most significantly, the courts have had trouble attracting and retaining qualified international personnel to serve as judges, prosecutors, and defense counsel.To the extent that hybrid courts are touted as a means of doing justice on the cheap, and then deprived of even the most basic resources, they cannot fulfill their potential. Nonetheless, such concerns about funding are issues more of implementation than conception. And, of course, lack of resources can be a problem regardless of the legal framework adopted.

In the end, perhaps the greatest indication of the promise of hybrid tribunals is found in the fact that they are increasingly being used in post-conflict situations. After many years of efforts, creation of a hybriddomestic/international court in Cambodia, an established free-standing hybrid court in Sierra Leone and hybrid courts are also currently operating in East Timor. Even within the Bush Administration, which is quite often resistant to international justice, there is some support for hybrid domestic-international tribunals, such as the special court for Sierra Leone.

THE RELATIONSHIP BETWEEN HYBRID COURTS AND INTERNATIONAL COURTS

Some critics have suggested that hybrid courts are a mere second-best alternative to international courts. Yet the Sri Lankan case illustrates that such courts need not be a replacement for international justice (or indeed, for local justice, either). Rather, the use of hybrid courts in Sri Lanka suggests that such courts may be a necessary complement to international tribunals.

Indeed, their use in Sri Lanka, in the shadow of the ICTY (The International Criminal Tribunal for Yugoslavia), may have implications for the relationship of such courts to the newly established ICC (International Criminal Court). The need to establish hybrid courts in Sri Lanka precisely because the ICTY could not handle the volume of atrocities cases from the region. Similarly, the ICC will not be equipped to try more than a handful of cases arising from any given post-conflict situation. Yet local courts may not be able to try such cases either. In fact, it is highly likely that in any circumstance in which the ICC assumes jurisdiction, the number of cases crying out for some form of international adjudication, due to the inability of special hybrid courts to handle them, will vastly exceed the ICC’s capacity. Apart from circumstances in which the UN Human Rights Council determines that the court should exercise jurisdiction, the court’s complementarity regime ensures that the court can only assume jurisdiction where national courts are unwilling or unable to investigate.

Yet it is precisely in these circumstances that huge numbers of cases cannot be adequately resolved by special hybrid courts—and the number of the cases that cannot be resolved adequately will likely far outnumber the ones that might come before the ICC. Under these circumstances, hybrid courts can play a useful role in shoring up the capacity and legitimacy of criminal proceedings to try those accused of committing mass atrocities. Their success will depend in part on whether they receive adequate material and human resources. Certainly, the hybrid courts in Kosovo, East Timor have suffered on these grounds. Nonetheless, failures in implementation should not lead to an indictment of the model itself. These courts hold considerable promise, even in a world after the ICC.
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