POSITIONING HYBRID TRIBUNALS IN INTERNATIONAL CRIMINAL JUSTICE

Transcription

1 POSITIONING HYBRID TRIBUNALS IN INTERNATIONAL CRIMINAL JUSTICE LINDSEY RAUB I. INTRODUCTION II. THE LIMITED SPHERE OF THE AD HOC TRIBUNALS AND THE INTERNATIONAL CRIMINAL COURT III. THE HYBRID TRIBUNALS A. Kosovo B. East Timor C. The Extraordinary Chambers in the Courts of Cambodia D. The Special Court for Sierra Leone E. The Special Tribunal for Lebanon IV. A ROLE FOR HYBRID TRIBUNALS IN INTERNATIONAL CRIMINAL LAW A. The Advantages of Hybrid Tribunals B. Challenges Facing Hybrid Tribunals C. Hybrid Tribunals and the International Criminal Court V. CONCLUSION International criminal law deals with the darkest side of humanity. [T]he magnitude of this task is such that there is no single response to the multifarious aspects of international criminality. 1 I. INTRODUCTION The end of the Second World War marked the emergence of a new international norm: when individuals commit atrocities so heinous as to offend the conscience of humankind, the international community may bring them to justice. Until the establishment of the Nuremberg and Tokyo Military Tribunals, those deemed responsible for war crimes had been 1. Antonio Cassese, The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality, in INTERNATIONALIZED CRIMINAL COURTS: SIERRA LEONE, EAST TIMOR, KOSOVO, AND CAMBODIA 1, 13 (Cesare Romano, Andre Nollkaemper & Jann K. Kleffner eds., 2004). 1013

2 1014 INTERNATIONAL LAW AND POLITICS [Vol. 41:1013 tried under national law, generally in military justice systems. 2 The Nuremburg trials confirmed that individuals had duties under international, as well as national, law and that international law could reach beyond states and attach responsibility to individuals for violations of these obligations. 3 The London Accord, signed in 1945 by the United States, the United Kingdom, the French Republic, and the Soviet Union, established a judicial system to try war criminals whose offenses have no particular geographical location, whether they be accused individually or in their capacity as members of organizations or groups or in both capacities. 4 These trials marked the first time the leaders of a major state were to be arraigned by the international community for conspiring to perpetrate, or causing to be perpetrated, a whole series of crimes against peace and against humanity. 5 Though the Nuremberg tribunal was a great accomplishment in its own right, such a tribunal today would likely fail to pass muster, encountering cries of victors justice and charges that it violated nullum crimen sine lege, or the principle that conduct must have been explicitly proscribed at the time of such conduct for society to punish an alleged offender. 6 Since Nuremberg, the United Nations (U.N.) has engaged in various experiments in developing mechanisms to enforce what has come to be known as international criminal law. The resulting institutions are the products of varying political compromises and have been given very different man- 2. See Andrew Clapham, Issues of Complexity, Complicity, and Complementarity: From the Nuremberg Trials to the Dawn of the New International Criminal Court, in FROM NUREMBERG TO THE HAGUE: THE FUTURE OF INTERNATIONAL CRIMI- NAL JUSTICE 30, 31 (Philippe Sands ed., 2003). 3. Id. at The Agreement for the Prosecution and Punishment for Major War Criminals of the European Axis, Charter of the International Military Tribunal art.1, Aug. 8, 1945, 8 U.N.T.S Richard Overy, The Nuremberg Trials: International Law in the Making, in FROM NUREMBERG TO THE HAGUE: THE FUTURE OF INTERNATIONAL CRIMI- NAL JUSTICE 1, 2 (Philippe Sands ed., 2003). 6. See JACKSON NYAMUYA MAOGOTO, WAR CRIMES AND REALPOLITIK: INTER- NATIONAL JUSTICE FROM WORLD WAR I TO THE 21ST CENTURY 99 (2004); see also Overy, supra note 5, at ( The idea of retrospective justice... that the Tribunal would be both legislator and judge, creating crimes in order to punish them, was something that Western legal opinion also found difficult to accept. ).

3 2009] POSITIONING HYBRID TRIBUNALS 1015 dates. 7 The early 1990s saw some of the worst atrocities since the Holocaust. 8 These atrocities prompted the U.N. to create the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and, less than one year later, the International Criminal Tribunal for Rwanda (ICTR). 9 Despite the considerable achievements of these institutions, they were not designed to provide a definitive model for the implementation of international criminal justice. 10 In 2002 the need for these ad hoc international institutions was diminished by the creation of the International Criminal Court (ICC), 11 a permanent institution established with the aim of putting an end to impunity for the perpetrators of the most serious crimes of concern to the international community. 12 Prior to the creation of the ICC, as the Security Council and the international community became aware of various features of the ad hoc tribunals that militated against using them as a model for future ad hoc international criminal courts, the U.N. began to search for alternatives. 13 This led to the birth of a new form of international criminal justice institution the hybrid tribunal James Cockayne, The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals, 28 FORDHAM INT L L.J. 616, 618 (2005). 8. Reports depicting heinous crimes including thousands of civilians being killed and wounded, tortured and sexually abused in detention camps, and hundreds of thousands being expelled from their homes prompted the Security Council to act, leading to the creation of the ICTY in May Estimates indicate that around 250,000 people died and more than one million were displaced in the regions of the former Yugoslavia, while approximately half a million Tutsis were slaughtered by members of the Hutu tribe in Rwanda in See International Criminal Tribunal for the Former Yugoslavia, About the ICTY, (last visited May 18, 2009); see also the Project on International Courts and Tribunals, ICTR, (last visited May 18, 2009). 9. See United Nations Documentation: Research Guide, ICTY and ICTR, (last visited May 18, 2009). 10. David Cohen, Hybrid Justice in East Timor, Sierra Leone, and Cambodia: Lessons Learned and Prospects for the Future, 43 STAN. J. INT L L. 1, 1 (2007). 11. See id. 12. Rome Statute of the International Criminal Court arts. 1, 5(1) and pmbl., U.N. Doc. A/CONF.183/9 (July 17, 1998) [hereinafter Rome Statute]. 13. See Cohen, supra note 10, at Id. These types of tribunals are also often referred to as internationalized or mixed tribunals. It is the international aspect of these mecha-

4 1016 INTERNATIONAL LAW AND POLITICS [Vol. 41:1013 These tribunals are referred to as hybrid or internationalized because both the institutional apparatus and the applicable law consist of a blend of the international and the domestic, resulting in a mixed form of justice. 15 Such tribunals employ the efforts of both the international community and the state in which the alleged crimes occurred. 16 Over the past two decades several hybrid tribunals have been created, including the Regulation 64 Panels in Kosovo; the Special Panels for Serious Crimes (SPSC) in Dili, East Timor; the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Phnom Penh; the Special Court for Sierra Leone (SCSL) in Freetown; and most recently the Special Tribunal for Lebanon (STL) in The Hague, The Netherlands. This Note argues that hybrid tribunals have a crucial role to play in international criminal justice. Hybrid tribunals present unique advantages in light of the expiring mandates of the ad hoc tribunals and the establishment of the ICC. An assessment of the structures of existing and pre-existing hybrid tribunals demonstrates that, in some circumstances, hybrid tribunals offer a model of transitional justice superior to that provided by purely national or international courts. Therefore, the establishment of such tribunals should be preserved as an option for implementing international criminal justice. Part II will discuss the criticisms lodged against the ad hoc criminal tribunals. Part III will then examine hybrid tribunals noted above and consider their utility in responding to these criticisms. Finally, Part IV will consider the role of the hybrid tribunal in international criminal law, arguing that these tribunals remain essential in the fight against impunity and provide certain advantages, particularly to the victim population, in adnisms of justice that make them noteworthy. At times, such as in the case of the Special Court for Sierra Leone, it may be more appropriate to refer to the nationalization of an international court rather than the internationalization of a domestic court. See Cesare Romano, Andre Nollkaemper, & Jann K. Kleffner, Preface to INTERNATIONALIZED CRIMINAL COURTS: SIERRA LE- ONE, EAST TIMOR, KOSOVO, AND CAMBODIA (Cesare Romano, Andre Nollkaemper & Jann K. Kleffner eds., 2004). For the purposes of this Note, such institutions will be referred to as hybrid tribunals for the sake of uniformity. 15. Laura A. Dickinson, Note, The Promise of Hybrid Courts, 97 AM. J. INT L L. 295, 295 (2003). 16. Cohen, supra note 10, at 2.

5 2009] POSITIONING HYBRID TRIBUNALS 1017 ministering justice that the ICC and ad hoc tribunals are less well-situated to provide. II. THE LIMITED SPHERE OF THE AD HOC TRIBUNALS AND THE INTERNATIONAL CRIMINAL COURT While proponents of international prosecutions emphasize the need to promote and maintain international peace both goals articulated by the ICTY, ICTR, and ICC the trials conducted by such international institutions face certain obstacles. Hybrid tribunals present unique options in response to the criticisms lodged against purely international trials, and their flexibility allows them to incorporate the strengths of preceding international criminal judicial institutions while adjusting to the specific needs of a particular situation, including, significantly, the needs of the victim population. The sphere of international criminal justice established by the ad hoc tribunals, and now dominated by the International Criminal Court, is exceedingly important in the fight against impunity and the development of international criminal law. However, this sphere is limited. Hybrid tribunals offer an alternative approach to international criminal justice that, when coupled with the operation of a permanent international criminal court, expands the range of options and allows for greater flexibility in the pursuit of international criminal justice. Advocates of international, as opposed to domestic, trials point to the opportunities presented by an international trial to both fulfill victims expectations for the highest forms of justice and uphold the international rule of law. 17 They also argue that international prosecutions are preferable to national prosecutions for several reasons. International prosecutions are less destabilizing to fragile governments, and less likely to capitulate to short-term national political objectives. They are able to draw on the expertise of international judges and lawyers who are better qualified to contribute to the progressive development of international law and to conduct impartial proceedings than national governments emerging from recent conflict. Finally, they are more likely to be respected by national authorities, possess a greater ability to investigate 17. José Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 YALE J. INT L L. 365, 375 (1999).

6 1018 INTERNATIONAL LAW AND POLITICS [Vol. 41:1013 crimes with ramifications in multiple states, and can render more uniform justice. 18 The creation of the ICTY and ICTR reflects the view that it is both politically desirable and legally justified to conduct such trials at the international level in light of the interstate interests implicated by the nature and extent of the atrocities at issue. 19 Such interstate interests, including the flow of refugees across international boundaries, the failure of the national government to prosecute those responsible, and the fact that more than one state was involved in at least some of the crimes committed, led the U.N. Security Council to determine that the crimes committed in both regions constituted a credible threat to international peace as anticipated in Chapter VII of the U.N. Charter. 20 The creation of the ICC offers further proof of the symbolic importance of international trials by highlighting the desire of the international community to create a permanent adjudicatory body to address the interstate interests discussed above and to prosecute crimes of concern to all humankind. In order to promote the above-mentioned interstate interests and ensure the tribunals had the opportunity to prosecute those most responsible for atrocities concerned, both the ICTY and ICTR were given primacy over national courts. 21 Under both statutes, primacy authorizes that, at any stage of the procedure the international tribunal may order national courts to defer to its competence and release a suspect to its custody for trial. 22 The inclusion of primacy was a key source of contention amongst critics of the tribunals. As noted by José Alvarez 18. See id. (citing Antonio Cassese, On the Current Trends Towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law, 9 EUR. J. INT L L. 2, 9-10 (1998)). 19. Id. at See id. at 376 n.54 (citing The Secretary-General, Report of the Secretary- General Pursuant to Paragraph 2 of Security Council Resolution 808, 6, submitted to the Security Council, U.N. Doc. S/25704 (May 3, 1993) (restating the Security Council s grave concern at violations of international humanitarian law occurring in the former Yugoslavia); S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) (establishing the tribunal for Rwanda)). 21. See id. at Id. at 386 (citing Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 9(2), available at icty/legaldoc-e/basic/statut/statute-feb08-e.pdf [hereinafter ICTY Statute]; Statute of the International Tribunal for Rwanda, art. 8(2), available at www.

7 2009] POSITIONING HYBRID TRIBUNALS 1019 in his critique of the ICTR, [o]n a day-to-day basis, more people rely on the protection and viability of their own local law and institutions than on international law or the U.N. 23 Thus, by depriving the Rwandan government of the opportunity to try high-level perpetrators, the ICTR s primacy deprived the current government of legitimacy at a critical time. 24 The drafters of the Rome Statute (hereinafter the Statute) sought to address these critiques by incorporating the principle of complementarity as one of the foundations of the ICC. 25 Where national authorities can properly investigate and prosecute alleged offenses, the ICC will cede jurisdiction to national institutions, since they are the preferred avenues for bringing offenders to justice. 26 Complementarity strives to harmonize, wherever possible, multiple and competing sources of jurisdiction over international crimes. 27 This harmonization, however, is not always possible and the principle of complementarity was not intended to serve as a loophole by which perpetrators might escape investigation and prosecution. 28 Nor does complementarity definitively address the problems of primacy. Indeed, the ICC has already been criticized for asserting its jurisdiction in Sudan. 29 Nonetheless, the international community appears to have learned from the icls.de/dokumente/ictr_statute.pdf [hereinafter ICTR Statute]) (internal citations omitted). 23. Id. at Id. at See Rome Statute, supra note 12, at pmbl., art See Office of the Prosecutor of the International Criminal Court, Paper on Some Policy Issues Before the Office of the Prosecutor, at 2 (2003), available at (emphasizing the complementary nature of the Court). 27. Ruth B. Philips, The International Criminal Court Statute: Jurisdiction and Admissibility, 10 CRIM. L.F. 61, 63 (1999). 28. For example, the ICC s deference to national court systems does not extend where the state which has jurisdiction over the alleged crimes is unable or unwilling to genuinely carry out an investigation or prosecution. In such a situation the ICC could assert jurisdiction in order to ensure the investigation and/or prosecution of the alleged offenders. See Rome Statute, supra note 12, at art. 17(1)(A). 29. In the case of Darfur, a major criticism of the ICC s exercise of jurisdiction was the fact that the Sudanese judiciary had in fact gone a long way in holding trials and was itself capable of ensuring accountability. See Press Release, Security Council, Security Council Refers Situation in Darfur, Su-

8 1020 INTERNATIONAL LAW AND POLITICS [Vol. 41:1013 past, recognizing the importance of allowing countries to prosecute their own nationals where the local judiciary is both willing and able. The ability of hybrid tribunals to effectuate national involvement in the judicial process emphasizes the continuing need for such institutions in the sphere of international criminal law. In addition to the criticisms of primacy, several other factors demonstrate why international tribunals alone are insufficient to prosecute suspects of international crimes and bring about justice for those affected by such crimes. In post-conflict societies, there is often a need to strengthen local courts and institutions. Removing trials to the international level deflects resources and attention from this goal. 30 International tribunals have also been criticized for the duration of trials. 31 Delay not only impedes the right of the accused to a speedy trial, but also means that trials may occur decades after the atrocities have ended. 32 Consider the trial of Slobodan Milosevic, indicted by the ICTY in 1999 and charged with genocide, crimes against humanity and war crimes. 33 Milosevic died in his cell in The Hague only months before a verdict was to be rendered in his trial of more than four years. 34 While an extreme example, the Milosevic trial nonetheless demonstrates the pitfalls of the lengthy international process, as some victims undoubtedly view the failure of the ICTY to render a verdict in the Milosevic trial as justice denied. 35 International tribunals lack accountability and perceived legitimacy in relation to the victim population since they often respond most readily to their patrons the international community and only incidentally to victims. 36 International dan to Prosecutor of International Criminal Court, U.N. Doc. SC/8351 (Mar. 31, 2005). 30. See Dickinson, supra note 15, at See Cohen, supra note 10, at See id. 33. See Milosevic Dies before Trial Verdict, REUTERS, Mar. 12, 2006, available at htm. 34. See id. 35. See Death of Milosevic Called Justice Denied, INT L HERALD TRIBUNE, Mar. 12, 2006, available at php. 36. See Alvarez, supra note 17, at 410 (citing Catharine A. MacKinnon, Remedies for War Crimes at the National Level, J. INT L INST., Fall 1988, at 1); see

9 2009] POSITIONING HYBRID TRIBUNALS 1021 tribunals also risk a lack of national ownership in the process, since they do not necessarily involve the local population. 37 Citizens of the affected country should feel some participatory connection to the trials if those trials are to further the oftdeclared goals of international criminal justice promoting reconciliation, developing a culture of accountability, and creating respect for judicial institutions in a post-conflict society. 38 These goals require outreach, education, and other capacity-building efforts at the local and national level in order to ensure both that the local population is aware of the progress of these judicial institutions and that the tribunal contributes to the rebuilding of the national infrastructure, in particular the judiciary. 39 Without such programs it becomes too easy to dismiss the process as simply imposed by foreign countries and organizations who have misunderstood what really happened, 40 and the resulting prosecutions may be seen by the affected population as lacking both legitimacy and accountability. Moreover, national trials are likely to reach further back into the country s past to provide a fuller account of the scope of the conflict and to avoid punishing only those deemed most accountable. 41 For example, in Rwanda, José Alvarez argues that national trials might have been more likely to provide a full account of the atrocities and an accurate account of the extent of complicity than trials of a select few high-level perpetrators at the ICTR, and thus could create a more illustrative account of the genocide. 42 also Dickinson, supra note 15, at 301. According to Alvarez, [t]he signal the ICTR is now sending to perpetrators everywhere is not that international norms will be enforced against all those who violate them but that those most responsible for the worst offenses will not be accountable directly to the communities they butchered. Instead, they will receive relatively lenient treatment, have their lives spared, and face, at most, some years in confinement under conditions far better than they could have ever anticipated back home. Alvarez, supra note 17, at 418. The term legitimacy is used throughout this Note to refer to the legitimacy of tribunals as perceived by the various populations, both domestic and international, observing the trials and procedures of the international judicial body at issue. Cf. Dickinson, supra note 15, at See Cohen, supra note 10, at See id. at See id. at Id. at See Alvarez, supra note 17, at See id. at 401.

10 1022 INTERNATIONAL LAW AND POLITICS [Vol. 41:1013 Local trials also present additional advantages that international tribunals are not in a position to provide. To many survivors of atrocities, it matters a great deal whether an alleged perpetrator... is paraded before the local press, judged in a local courtroom in a language that [the local population] can understand, subjected to local procedures, and given a sentence that accords with local sentiments, including perhaps the death penalty, 43 which tribunals affiliated with the U.N. have not applied. 44 There is a perception of hypocrisy in the U.N. s refusal to apply the death penalty to those most responsible for the atrocities when local courts may impose such a penalty for those bearing less culpability. 45 For instance, despite the Rwandan government s express objection, the Security Council insisted upon the unavailability of the death penalty to the judges of the ICTR. 46 In addition, the location of international tribunals far from the situs of the conflict makes it difficult for victims and ordinary citizens to attend trials as well as for the tribunals to conduct outreach to the affected community, a measure that would ensure the trial is meaningful to those on whose behalf justice is being undertaken. 47 A tribunal s remote location may also create difficulties with respect to the production of witnesses and the ability to conduct investigations. 48 Finally, both the ICTY and ICTR are massive judicial institutions with considerable budgets, staffs, and dockets filled with complex cases that require a significant period of time to try. 49 In view of this, the relatively small number of trials completed by the tribunals appears unsatisfactory. The incredible costs and operational challenges of the ad hoc tribunals have tried the patience of many States. Where never again was once the catch-cry of anti-impunity activists, now it has become 43. Id. at See Human Rights Watch, U.K.: Letter on United Nations Involvement with Iraqi Special Tribunal, Jan. 14, 2004, available at news/2004/01/14/uk-letter-united-nations-involvement-iraqi-special-tribunal; see also Sylvia de Bertodano, Were There More Acceptable Alternatives to the Iraqi High Tribunal?, 5 J. INT L CRIM. JUST. 294, 297 (2007). 45. See Alvarez, supra note 17, at See id. 47. See Cohen, supra note 10, at See id. at See id. at 3-4.

11 2009] POSITIONING HYBRID TRIBUNALS 1023 the under-the-breath muttering of Permanent Representatives on their way to approving another tribunal budget at U.N. Headquarters. 50 The budget for the ICTY is $347,566,900 or approximately $173.7 million per year. 51 The budget for the ICTR was $267,356,200 or approximately $133.7 million per year. 52 Despite these sizeable budgets, both tribunals have been able to try only a handful of perpetrators and both have continued to function beyond their 2008 mandates, 53 requiring additional assessed contributions from the U.N. budget. 54 III. THE HYBRID TRIBUNALS Hybrid tribunals are most often established in post-conflict situations where no international tribunal exists, as in East Timor, Cambodia, Sierra Leone, and Lebanon; or where an international tribunal exists but cannot cope with the number of alleged perpetrators, as in Kosovo. 55 A tribunal may be classified as hybrid or internationalized based on a number of criteria: legal basis, function/mandate, location within or without the domestic court system, subject-matter-jurisdiction, oversight, and composition/personnel. 56 No two hybrid tribunals are identical. The aim of these tribunals is to marry the best of two worlds the expertise of the international community with the legitimacy of local actors. 57 To reduce costs and help 50. Cockayne, supra note 7, at See ICTY Weekly Press Briefing, Jan. 16, 2008, icty/briefing/2008/pb htm. 52. See Rwanda: UN Approves 267 Million Dollars ICTR Budget, HIRONDELLE NEWS AGENCY, Jan. 17, 2008, available at html. 53. See ICTY/Mandate The Tribunal for the Former Yugoslavia Also Has to Envisage Its Closing, HIRONDELLE NEWS AGENCY, June 15, 2007, available at George Kagame, Rwanda: UN Security Council Extends ICTR Mandate, HIRONDELLE NEWS AGENCY, July 21, 2008, available at 37.html. 54. See Thordis Ingadottir, The Financing of Internationalized Courts and Tribunals, in INTERNATIONALIZED CRIMINAL COURTS: SIERRA LEONE, EAST TI- MOR, KOSOVO, AND CAMBODIA, supra note 1, at Dickinson, supra note 15, at John Cerone and Clive Baldwin, Explaining and Evaluating the UNMIK Court System, in INTERNATIONALIZED CRIMINAL COURTS: SIERRA LEONE, EAST TIMOR, KOSOVO, AND CAMBODIA, supra note 1, at 41 n Cockayne, supra note 7, at 619.

12 1024 INTERNATIONAL LAW AND POLITICS [Vol. 41:1013 improve efficiency, the framers of hybrid tribunals have imposed time limits on the work of the courts in order to avoid the massive costs and delay that plagued the ICTY and ICTR. 58 One of the most significant departures of hybrid institutions from both the ad hoc tribunals and the ICC has been the manner in which they are funded. Both the ICTY and ICTR are funded by the U.N. in accordance with a predefined scale of assessment: half of their expenses are appropriated by U.N. Member States and the other half on the basis of the peacekeeping budget scale. 59 The ICC, on the other hand, was established outside the sphere of the U.N. and is funded by assessed contributions from State Parties to the Rome Statute. Funding may also be provided via voluntary contributions or by the U.N. upon approval by the General Assembly. 60 Hybrid tribunals, on the other hand, have been funded in a variety of ways. The Kosovo Regulation 64 Panels and the SPSC were funded through their respective U.N. mission budgets and, in the case of Kosovo, the Kosovo Consolidated Budget. The Extraordinary Chambers, Special Court for Sierra Leone, and Special Tribunal for Lebanon were funded by contributions from both the national government and the international community, either voluntarily or from the U.N. budget. 61 That hybrid tribunals are less expensive to operate than international courts and tribunals has proved to be both an advantage and disadvantage. The most expensive expenditures for the ICTY and ICTR are translation costs and defense costs, each constituting 13% of the tribunals budgets, and it is these services that the hybrid tribunals need but are lacking. 62 In addition, international judges of hybrid tribunals are paid less than judges serving on international courts and tribunals. The resulting financial instability and short-term contracts contribute to difficulties in recruiting qualified judges. 63 Funding is one of the major difficulties facing the creation and operation of a hybrid tribunal. However, such an obstacle is not insurmountable and does not preclude the creation of 58. See Cohen, supra note 10, at See Ingadottir, supra note 54, at Id. at See discussion on the specific funding methods for each hybrid tribunal, infra Parts III.A-E. 62. See Ingadottir, supra note 54, at Id. at 286.

13 2009] POSITIONING HYBRID TRIBUNALS 1025 these institutions. International and hybrid tribunals do not operate in a vacuum. 64 While the costs of these tribunals may seem extraordinary, the international community has spent an estimated $2.8 billion to implement peace in Sierra Leone. 65 In context, then, the estimated $89 million budget of the Special Court seems less extravagant. 66 The success of these tribunals (and perhaps all international criminal bodies) depends on the support of three groups of stakeholders: the victims and populations affected by the alleged crimes, the international community, and the defendants themselves. 67 As illustrated by the various critiques of the ICTY and ICTR, these stakeholders often have divergent and even competing interests. For example, the interest of the accused in having a speedy trial may not accord with the international interest in ensuring sufficient time to develop an institution capable of both trying the accused and promoting international criminal norms and justice. 68 The rest of this section examines several hybrid tribunals: the Kosovo Regulation 64 Panels, the Special Panels of the Dili District Court, the Extraordinary Chambers of the Courts of Cambodia, the Special Court for Sierra Leone, and the Special Tribunal for Lebanon. It then assesses these tribunals, arguing that the creation of the International Criminal Court has not obviated the need for hybrid tribunals in implementing international criminal justice, and that, in certain circumstances, the use of a hybrid tribunal may be a more appropri- 64. See id. at See United Nations Mission in Sierra Leone Facts and Figures, available at The United Nations Mission in Sierra Leone (UNAMSIL) was established in 1999 to assist the Sierra Leonean government in implementing the Lome Peace Accord negotiated between the government and the rebels in May See United Nations Mission in Sierra Leone UNAMSIL Background, available at See Chatham House, The Special Court for Sierra Leone and How It Will End: A Summary of the Chatham House International Law Discussion Group Meeting Held on July 9, 2007, available at org.uk/files/9574_il pdf (stating that the official budget is used to support court-paid staff in each district, an extensive NGO network, and various radio and video programs aimed at disseminating information). 67. See Cockayne, supra note 7, at See Cohen, supra note 10, at 4-5.

14 1026 INTERNATIONAL LAW AND POLITICS [Vol. 41:1013 ate approach to accountability than the assertion of ICC jurisdiction. 69 A. Kosovo In June 1999, six years after the creation of the ICTY, the United Nations Interim Administration Mission in Kosovo (UNMIK) recognized that the tribunal only had the resources to try those most responsible for the atrocities that had taken place in the former Yugoslavia. As such, UNMIK was left to arrange for the investigation and prosecution of those who had committed crimes against humanity, war crimes, and other serious crimes during the Bosnian civil war that were beyond the ICTY s jurisdiction. 70 The local judiciary lacked both the capacity and independence to conduct trials on its own. 71 Much of the local infrastructure including court buildings, law libraries, and equipment had been destroyed during the war. In addition, local lawyers and judges were scarce or lacked experience, as most Serbian judges and lawyers had fled the country while Albanians had been barred from the judiciary for years. 72 In the midst of this inadequate infrastructure, detainees awaited trial in crowded prisons, and frustration from delays in the judicial process led to ethnic violence. 73 To address these mounting crises of accountability and justice, UNMIK passed several regulations permitting foreign judges to sit alongside domestic judges on existing Kosovar courts and allowing foreign lawyers to partner with domestic lawyers to prosecute and defend the cases. 74 Unlike the Spe- 69. The following discussion of the various internationalized tribunals is not intended to be all-encompassing but rather to give a brief description of the circumstances prompting the establishment of each tribunal and of the structure and activity of each tribunal. 70. See Dickinson, supra note 15, at Id. at See id. 73. See id. 74. See id.; see, e.g., UNMIK/REG/2000/34 (May 27, 2000) (amending UN- MIK/REG/2000/6 (Feb. 15, 2000)); UNMIK/REG/2000/64 (Dec. 15, 2000). The authority to pass such regulations stemmed from the U.N. Administration s comprehensive mandate for humanitarian, governance, economic reconstruction, and sustainable development. See S/RES/1244 (June 10, 1999); see also Daphna Shraga, The Second Generation UN-Based Tribunals: A Diversity of Mixed Jurisdictions, in INTERNATIONALIZED CRIMINAL COURTS: SIERRA

15 2009] POSITIONING HYBRID TRIBUNALS 1027 cial Court for Sierra Leone and the Special Tribunal for Lebanon, which are treaty-based, and the Extraordinary Chambers in Cambodia, which was created on the basis of domestic legislation, the Kosovo court system derived its authority from these UNMIK regulations. 75 In keeping with the hybrid nature of these institutions, the substantive law applied by the courts was a blend of international and domestic, 76 with local law applying only insofar as it did not conflict with international human rights norms. 77 The majority of the law applicable in the Kosovo courts was derived from pre-existing Yugoslav domestic legislation. Such legislation served as the vehicle through which international criminal law was to be applied, whereas the court s authority to apply international human rights law stemmed from the UNMIK Regulations. 78 Under UNMIK Regulation 2000/64, the Special Representative of the Secretary-General (SRSG) had the authority, upon the request of a prosecutor, an accused, or defense counsel, to appoint an international prosecutor, judge, or a panel of three judges, at least two of whom were international, resulting in the creation of the so-called Regulation 64 Panels. 79 International judges and prosecutors were paid by the U.N. under its professional salary scale, 80 while the financing of the international panels LEONE, EAST TIMOR, KOSOVO, AND CAMBODIA 15, 32 (Cesare Romano, Andre Nollkaemper, & Jann K. Kleffner eds., 2004). 75. See Cerone & Baldwin, supra note 56, at 41; Nidal Nabil Jurdi, The Subject-Matter Jurisdiction of the Special Tribunal for Lebanon, 5 J. OF INT L CRIM. JUST. 1125, 1126 (2007). 76. The local law applied was that in force in Kosovo prior to March 22, See Dickinson, supra note 15, at See id. This application of a blend of international and domestic law differs from the competence of the international tribunals and international criminal court, which are authorized to prosecute persons responsible for violations of international humanitarian law, grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, crimes against humanity, and in the case of the ICC, the crime of aggression once a definition of the crime has been adopted. See ICTY Statute, supra note 22, at arts. 1-5; ICTR Statute, supra note 22, at arts. 1-4; Rome Statute, supra note 12, at arts See Cerone & Baldwin, supra note 56, at 44; see, e.g., UNMIK/REG/ 1999/1 (July 25, 1999), UNMIK/REG/1999/23 (Nov. 15, 1999), and UN- MIK/REG/1999/24 (Dec. 12, 1999). 79. Shraga, supra note 74, at TOM PERRIELLO & MARIEKE WIERDA, INTERNATIONAL CENTER FOR TRANSITIONAL JUSTICE, LESSONS FROM THE DEPLOYMENT OF INTERNATIONAL

16 1028 INTERNATIONAL LAW AND POLITICS [Vol. 41:1013 and prosecution was divided between the UNMIK budget and the Kosovo Consolidated Budget. 81 As of June 2002 these courts had held seventeen trials in war crimes cases, 82 and in October 2002 international judges and prosecutors were participating in ninety ongoing trials. 83 By September 2005, twenty-seven international judges and prosecutors were involved in sixty and forty-four cases, respectively. 84 Measuring the Kosovo hybrid system s success depends upon the method of evaluation. Although both international criminal law and international human rights law were applicable, the courts lacked the resources and capacity to fully apply them. In addition, though the participation of international judges created an air of impartiality, according to John Cerone and Clive Baldwin these judges failed to increase the capacity of the domestic court system and were unable to achieve sufficient independence from the UNMIK executive. 85 Nevertheless, the Regulation 64 panels did succeed in trying several perpetrators who were unable to be tried by the ICTY due to its mandate to prosecute only those most responsible for crimes within the ICTY s jurisdiction. 86 The presence of international judges imparted an air of credibility to these trials that would have been missing without international involvement while at least some Kosovar judges have benefited from exposure to their international counterparts. 87 JUDGES AND PROSECUTORS IN KOSOVO 16 (2006), available at org/static/prosecutions/kosovo.study.pdf. 81. Id. at Dickinson, supra note 15, at MICHAEL E. HARTMANN, UNITED STATES INSTITUTE OF PEACE SPECIAL REPORT NO. 112, INTERNATIONAL JUDGES AND PROSECUTORS IN KOSOVO: A NEW MODEL FOR POST-CONFLICT PEACEKEEPING 12, (Oct. 2003), available at 89-FC4C-C4F7-0AC3-B0F02D7157F7&lng=en. 84. Perriello & Wierda, supra note 80, at Cerone & Baldwin, supra note 56, at See S.C. Res. 1503, U.N. Doc. S/RES/1503 (Aug. 28, 2003) (reaffirming the ICTY s strategy of concentrating on the prosecution and trial of the most senior leaders suspected of being most responsible for crimes within the ICTY s jurisdiction and transferring cases involving those who may not bear this level of responsibility to competent national jurisdictions, as appropriate.... ) (emphasis added). 87. See PERRIELLO & WIERDA, supra note 80, at 32.

17 2009] POSITIONING HYBRID TRIBUNALS 1029 B. East Timor Following the toppling of the Suharto dictatorship in Indonesia in 1998, East Timor held a referendum on independence from the Indonesian Republic. 88 Seventy-eight percent of the Timorese population voted in favor of independence in September However, deep political divides between pro-independence and pro-indonesian militias led to violence culminating in the deaths of hundreds, the destruction of eighty percent of the buildings in the capital, Dili, and the driving of more than one-third of the Timorese population from their homes. Later that month the Security Council, at the request of the Indonesian government, created a multinational force, the International Force East Timor (IN- TERFET) ultimately succeeded by the United Nations Transitional Administration for East Timor (UNTAET) to restore order in East Timor. 90 The UNTAET mandate called upon the transitional administration to create a judicial mechanism to achieve accountability in the region. In June 2000, UNTAET created the Special Panels of the Dili District Court (SPSC) to try cases related to the conflict. 91 The statute of the SPSC vested the panels with exclusive jurisdiction over serious crimes i.e. genocide, crimes against humanity, war crimes, torture, sexual violence, and murder committed in East Timor between January 1 and October 25, Assistance from the international community was necessary because, as in Kosovo, much of East Timor s physical infrastructure had been destroyed during the violence and the capacity of the judiciary had been significantly weakened. In addition, there were few East Timorese-trained lawyers, as most civil service posts had been reserved for Indonesians during the Suharto regime See Cohen, supra note 10, at Id. at Id. at 7-8 (citing S.C. Res. 1264, U.N. Doc. S/RES/1264 (Sept. 15, 1999) (establishing INTERFET); S.C. Res. 1272, U.N. Doc. S/RES/1272 (Oct. 25, 1999)). UNTAET administered East Timor until May 20, 2002, when the country became independent and the U.N. Mission of Support East Timor succeeded UNTAET. Id. at note See id. at See id. (citing U.N. Doc. UNTAET/REG/2000/15 (June 6, 2000) (establishing panels with exclusive jurisdiction over serious criminal offenses)). 93. Dickinson, supra note 15, at 298.

18 1030 INTERNATIONAL LAW AND POLITICS [Vol. 41:1013 UNTAET structured the SPSC to include two international judges and one Timorese judge and placed it within the newly created domestic legal system of East Timor. 94 Appeals were to be heard by the Timorese Court of Appeal, which had a structure similar to the District Court. The substantive law applied was also a mix of national and international law, incorporating slightly modified provisions of the Rome Statute of the ICC with respect to the definitions of genocide, crimes against humanity, and other crimes, and with other international conventions, norms, and jurisprudence, as well as Indonesian law, governing all aspects not covered by the Rome Statute provisions. 95 The Serious Crimes Unit of the prosecution service under the Prosecutor General of East Timor was responsible for prosecution, but UNTAET created no corresponding unit for defense until September 2002, when clear shortcomings in the provision of adequate defense led to the creation of the Defense Lawyers Unit. 96 From 2000 through 2005, the SPSC completed fifty-five trials involving eighty-seven defendants. Eighty-four were convicted and three acquitted, although one of those acquitted was ultimately convicted by the Appeals Court. 97 The Security Council s decision to set the closure date of the SPSC for May 20, 2005, cut short the work of the Panels, resulting in 514 investigative files remaining open. 98 From its inception, the SPSC faced a number of problems. While the location of the Panels within the domestic legal system of East Timor should seemingly have contributed to local ownership of the process, the unclear division of responsibility between the U.N. and the Timorese government resulted in a lack of clear ownership and allowed both sides to avoid responsibility. 99 The SPSC suffered many operational problems, including a lack of reliable electricity, security, and support from the U.N. and the local government in securing the arrest of high-level perpetrators, all of which seriously hampered the work of the court. 100 Confusion regarding own- 94. Cohen, supra note 10, at See id. 96. See id. at See id. 98. See id. 99. See id Id. at 9-10.

19 2009] POSITIONING HYBRID TRIBUNALS 1031 ership also led to conflicts regarding the appointment, recruitment, and management of personnel. 101 At one point the Court of Appeal did not function for twenty-one months because the U.N. and the Timorese government could not agree on appointments. It heard no appeals during this entire period, generating serious concerns regarding due process. 102 C. The Extraordinary Chambers in the Courts of Cambodia The Khmer Rouge held power in Cambodia from 1975 to 1979, but its impact on Cambodian society has been long-lasting. Civil war gripped Cambodia from 1979 until 1998, when the last remnants of the Khmer Rouge political and military structures fell with the surrender of Nuon Chea second in command to Pol Pot to the Cambodian government. 103 During the regime s brutal four-year rule, an estimated three million people died, 104 or between 20 and 25 percent of the Cambodian population at the time. 105 The atrocities committed by the regime during this period included systematic and widespread forced population movements to rural locations in order to facilitate the creation of a communal agricultural society, forced labor, inhumane living conditions, and the extermination of certain groups considered to be enemies of the revolution. 106 In 1997 co-prime Ministers Hun Sen and Prince Norodom Ranariddh wrote to the U.N. requesting assistance in establishing a tribunal to prosecute those most responsible for the atrocities committed under the Khmer Rouge. 107 The Cambodian government opposed the creation of a purely international tribunal, and Hun Sen in particular felt strongly 101. Id. at Id. at See Key Leaders of the Khmer Rouge, AL JAZEERA, Nov. 20, 2007, available at html Extraordinary Chambers in the Courts of Cambodia, Introduction to the ECCC, available at [hereinafter ECCC Introduction] See Helen Horsington, The Cambodian Khmer Rouge Tribunal: The Promise of a Hybrid Tribunal, 5 MEL. J. INT L L. 462, 465 (2004) Id. at See id. at 467; see also ECCC Introduction, supra note 104; Shraga, supra note 74, at 16.

20 1032 INTERNATIONAL LAW AND POLITICS [Vol. 41:1013 that a Cambodian-dominated tribunal was the most appropriate means of effectuating justice. 108 The Security Council s unwillingness to act, in the context of threats that China would veto any resolution establishing a tribunal, 109 prompted the General Assembly to take the lead. 110 The Secretary-General, upon the request of the General Assembly, recommended that a tribunal be established under either Chapter VI or VII of the U.N. Charter, but neither the Security Council nor the General Assembly acted upon this recommendation, leaving the Secretary-General to work with the Cambodian government to establish a hybrid tribunal. 111 Domestic politics most notably a coup staged by Hun Sen s Cambodian People s Party to oust Prince Ranariddh s Funcipec party from the coalition government established by a U.N.-sponsored election in 1993, as well as statements by former Khmer Rouge members that prosecution would lead to further civil unrest caused the negotiations between the U.N. and the Cambodian government to stagnate for several years. 112 Although several contentious issues revolving around the distribution of national and international participation in the tribunal led to a stalemate in negotiations between the Secretary-General and the government, the General Assembly finally approved a draft Agreement between the U.N. and the Cambodian government in Trials will be held in the Cambodian capital of Phnom Penh beginning in 2009 (with the delay due in large part to the protracted negotiations between the U.N. and the Cambodian government). 114 The Extraordinary Chambers 108. See Horsington, supra note 105, at Shraga, supra note 74, at Id. at See id. at Horsington, supra note 105, at See Shraga, supra note 74, at (describing issues concerning the nationality of judges, the appointment of the Prosecutor and the Registrar, the validity of previously granted amnesty, and the status of the agreement between the United Nations and the government concerning the Law on the Establishment of the Extraordinary Chambers). The official text of the Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea is available at Recognizing the importance of having the trials at the locus delicti in order to ensure a process accessible to the local population, the Cambodian

21 2009] POSITIONING HYBRID TRIBUNALS 1033 are intended to serve as a model for domestic court operations within Cambodia. 115 As with the hybrid institutions in Kosovo and East Timor, the weakened state of the Cambodian judiciary from years of civil war and the international nature of the crimes to be prosecuted led the government to believe that international participation was necessary to ensure that the trials met international standards of justice. 116 The Extraordinary Chambers consists of a Pre-Trial Chamber composed of five judges, three of whom are Cambodian, of whom one serves as President; a Trial Chamber composed of five judges, three of whom are Cambodian with one Cambodian judge serving as President; and the Supreme Court Chamber, which both hears appeals and serves as the chamber of final instance, and which is composed of seven judges, four of whom are Cambodian with one serving as President. 117 The ECCC has jurisdiction to prosecute senior leaders of the Khmer Rouge and those most responsible for crimes and serious violations of Cambodian criminal law, international humanitarian and customary law, and international conventions recognized by Cambodia. The Extraordinary Chambers jurisdiction over such crimes is limited to those committed between April 17, 1975 and January The Cambodian government will bear the costs of all Cambodian staff, judges, and prosecutors, while the U.N. will bear the costs of all foreign personnel. In addition, the Law on the Establishment of the Extraordinary Chambers passed by the Cambodian government provides that defense counsel may receive fees for providing services and that the Extraordinary Chambers may receive voluntary contributions from foreign governments, NGO s, international institutions, and other persons wishing to provide assistance. 119 government insisted the Chambers be located in Cambodia. See ECCC Introduction, supra note See id See id See Law on the Establishment of the Extraordinary Chambers, with inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/ 1004/006), art. 9, available at 20Law%20as%20amended%2027%20Oct%202004%20Eng.pdf [hereinafter The Law] See id. at art. 2. For a detailed list of all crimes over which the ECCC has jurisdiction, see id. at arts See id. at art. 44.