This guest post is written by Heather Ryan, who is currently monitoring the Extraordinary Chambers in the Courts of Cambodia (ECCC) for compliance with international standards and best practices. The views expressed below do not necessarily reflect the views of the Open Society Justice Initiative.
Efforts are underway to establish hybrid tribunals to address impunity for mass atrocities and violations of international criminal law in both Sri Lanka and the Central African Republic. The design of these tribunals must be guided by the unique circumstances of the conflicts that gave rise to them and to the political and legal situations in which they will operate. But it is also important that these courts, if they are established—which is not certain at this point—incorporate lessons learned by other hybrid tribunals that have struggled to succeed in addressing patterns of impunity.
Working with the Open Society Justice Initiative, I have been monitoring the Extraordinary Chambers in the Courts in Cambodia (ECCC) since its founding in 2006. The ECCC is a hybrid tribunal established to prosecute senior leaders and those most responsible for crimes committed during the Khmer Rouge regime in Cambodia between 1975 and 1979. The court results from an agreement between the United Nations and the government of Cambodia. While technically embedded in the domestic legal system, it operates as a hybrid international tribunal with international and Cambodian officials working together as prosecutors, judges, and in each of the other capacities necessary to operate a court designed to address complicated international crimes and meet international standards for fair trials.
The ECCC is not a model for other hybrid tribunals to replicate. It has been plagued by political interference, inefficiency, and financial difficulties. Yet, both because of and in spite of these problems, those involved in developing hybrid tribunals in Sri Lanka, Central Africa Republic, or elsewhere should not ignore the host of lessons that can be taken from the experience of the ECCC.
This is the first of a three-part series of posts on lessons that can be taken from the ECCC experience in the effort to develop successful hybrid tribunals in Sri Lanka and the Central Africa Republic. This first post address the role of hybrid tribunals as a tool for transitional justice and how they relate to the International Criminal Court (ICC), and also briefly explains the context of the proposed hybrid tribunals. The second and third posts will outline lessons from the ECCC that should be carefully considered in designing and implementing tribunals in Sri Lanka and the Central African Republic.
Hybrid Tribunals and the International Criminal Court
In addressing justice for violations of international criminal law, hybrid courts are distinguished from international courts such as the ICC by their mixed composition of international and national personnel, jurisdiction, and law, and the fact that they generally operate within the jurisdiction where the crimes occurred. Hybrid tribunals have been considered advantageous over purely domestic models where either the capacity to hold sophisticated trials involving international law and international standards is in doubt and/or fears exist as to bias or lack of independence in the domestic legal system.
By definition, hybrid tribunals take place in less than ideal circumstances for ensuring independent and credible accountability. Yet they hold the promise of strengthening the domestic legal and judicial system through capacity building and demonstrating procedures that meet international standards. They can promote local confidence, involvement, and reconciliation by being embedded in the domestic system. Hybrid courts are intended to operate with greater efficiency and lower cost than purely international courts. While not all hybrid courts have met these goals, they are still important when considering and designing new hybrid courts.
When the ICC was established, it was uncertain whether hybrid tribunals would continue to play a role in international accountability. The ICC incorporates the concept of “complementarity,” which favors domestic prosecutions of atrocity crimes and provides for ICC jurisdiction only when a domestic jurisdiction is unwilling or unable to carry out effective prosecutions of grave crimes. Complementarity encourages domestic justice systems to address impunity for atrocity crimes by developing the legal structures and capacity to deal with them locally. However, this structure has not eliminated the interest in hybrid tribunals, which, because of the flexibility in how they can be structured, continue to be proposed to meet demands for justice in a variety of diverse circumstances where international crimes have occurred. They can help bridge the gap between purely domestic tribunals and the purely international ICC.
The ICC is an essential option to address impunity for international crimes in some circumstances—situations of ongoing violence or governments unwilling to seek justice for atrocities. Yet, the ICC cannot or chooses not to address impunity in many situations where international crimes have been committed, often because of lack of jurisdiction, decisions about the gravity of crimes, or the allocation of scarce resources. Purely domestic prosecutions, favored by the ICC concept of complementarity, may not be an effective approach under all circumstances where the ICC does not act.
Hybrid tribunals may also address the broader justice needs of countries affected by atrocity crimes, even when the ICC plays a role. Because the ICC can only address a small number of perpetrators in an atrocity situation, there may often be a role for hybrid courts to try lower-level perpetrators in a situation where the ICC tries higher-level actors.
Recognizing the limitations of the ICC and domestic tribunals in fully addressing impunity for international crimes, hybrid tribunals—either independent of or operating alongside the ICC—hold promise for accountability for international crimes in some circumstances. Hybrid tribunals are currently under discussion in Sri Lanka, which is not a party to the ICC, and in the Central African Republic, where two submissions to the ICC have been made by the government and accepted by the ICC prosecutor.
Sri Lanka Hybrid Tribunal
In September 2015, the UN Office of the High Commissioner for Human Rights (OHCHR) reported on its investigation of abuses committed in Sri Lanka during the civil conflict between 2002 and 2011. The report details a “horrific level of violations and abuses” by government forces, pro-government paramilitaries and the separatist Tamil Tigers (LTTE). These include unlawful killings and deprivations of liberty, enforced disappearances, torture, sexual and gender based violence, forced abduction, recruitment of children, and denial of humanitarian assistance. Emphasizing the sheer number of allegations, their gravity, recurrence, and consistent patterns of conduct, the High Commissioner found reasonable grounds to believe that all parties committed international crimes during the conflict.
In evaluating possible accountability mechanisms, the report highlighted the total failure of a series of domestic efforts to credibly investigate, establish the truth, ensure accountability, or provide redress to victims of the serious human rights violations. The population is deeply suspicious of domestic accountability attempts as a result. In addition, the need for fundamental reforms of the security sector and justice system―including a full-fledged vetting process to remove from office security forces personnel and public officials suspected of human rights violations―and the lack of proven witness protection capacity raise concerns about the effectiveness of a fully domestic accountability process. Finally, while recognizing positive signs of support from President Maithripala Sirisena, the report raises concerns about the depth of political will in the government for credible accountability processes.
The High Commissioner thus concluded that achieving accountability in Sri Lanka will require more than domestic mechanisms. He recommended a hybrid special court “integrating international judges, prosecutors, lawyers and investigators, mandated to try war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defense office and witness and victims protection program.” Given the politicization and highly polarized environment in Sri Lanka, he sees such a court as necessary to give confidence to all Sri Lankans, in particular the victims, that the process is independent and impartial.
Central African Republic Tribunal
For decades political, ethnic, and sectarian clashes have disrupted life in CAR.
The Central African Republic is one of the poorest countries in the world, ranking 185th (out of 187) on the United Nations Human Development Index, compounding the difficulties created by conflict. Currently, violence between the mainly Muslim Séléka alliance and the mostly Christian Anti-Balaka militia, continues to threaten progress towards a peaceful and just society. The UN estimates that in the recent years of civil war nearly 440,000 people have been displaced inside the country and 190,000 have sought asylum outside of the country. Minimum death toll estimates since 2013 exceed 6,000. A transitional government was established in January 2014 with Catherine Samba-Panza, who is not aligned with parties to the conflict, as interim president.
In April 2014, the UN Security Council established a peacekeeping force, the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA), with a mandate that included deployment of 10,000 troops and the protection of civilians.
In January 2015, an international commission of inquiry appointed by the UN Security Council, having found that crimes against humanity were widely committed by all parties to the ongoing conflict, called for the establishment of a fully international tribunal to investigate and prosecute perpetrators of these crimes. Philip Alston, one of the commissioners, noted that government officials have a well-founded expectation of impunity that hinders ending the violence and that national judges do not have sufficient independence to conduct fair trials of such crimes.
In April 2015 the interim government of the Central African Republic passed a law to establish a Special Criminal Court (SCC) with the aim of prosecuting atrocities committed in the country since 2003. The legislation provides for 27 judges: 14 from the Central African Republic (including the chief judge of the court and of each chamber) and 13 judges from outside the Central African Republic. The prosecutor will be an international. The jurisdiction of the court will include serious international crimes committed in the territory of the Central African Republic, including war crimes, crimes against humanity, and genocide. The SCC is a temporary court embedded within the national justice system and designed to apply Central African Republic law and procedure.
It is significant that the SCC is established specifically to work alongside the ICC. The ICC prosecutor has accepted two submissions by the Central African Republic requesting investigations—the first concerning violence from 2002 and the second concerning violence since 2012.
Although a creature of domestic law, the SCC is intended to work in conjunction with MINUSCA because international funding, expertise, and other assistance will be essential if the court is to succeed. In April 2015, the United Nations Security Council renewed the mandate of MINUSCA for an additional year and tasked it with supporting the work of the SCC, in particular in the areas of investigations, arrests, detention, forensic analysis, evidence collection and storage, recruitment and selection of personnel, the establishment of a legal aid system, and security for judges, victims, and witnesses—all while supporting local ownership of justice processes and close proximity to victims.
The international participation in the court is expected to contribute to building domestic judicial capacity, and to help protect judicial officials from political and military interference. Funding will entirely come from voluntary contributions by donors.