Lessons from Cambodia for Hybrid Tribunals in Sri Lanka and Central African Republic: Part II of III

This guest post was written by Heather Ryan, who is currently monitoring the ECCC for compliance with international standards and best practices. Part I of her three-part series is available here. The views expressed below do not necessarily reflect the views of the Open Society Justice Initiative.

This post (the second in a series of three) will focus on lessons that can be drawn from the hybrid tribunal established in Cambodia―known as the Extraordinary Chambers of the Courts in Cambodia (ECCC)―to inform proposed hybrid tribunals in Sri Lanka and Central Africa Republic (CAR).

When the ECCC was established in 2006, Cambodia faced challenges regarding its legal capacity, judicial independence, public legitimacy, and domestic political will. Similar challenges are faced in Sri Lanka and CAR. This post is not intended as a roadmap for the structure of the Sri Lanka or CAR tribunals, but rather outlines concepts gleaned from the experience in Cambodia that may be useful in developing successful hybrid tribunals in CAR and Sri Lanka.

In both Sri Lanka and CAR, recommendations to establish hybrid tribunals represent important attempts to promote essential accountability for atrocity crimes. Yet in both circumstances there is a tension between the desire for justice that is close to the victims and the domestic jurisdiction, and the recognition that the capacity, security, independence, and political will for thorough accountability is tenuous. This tension is characteristic of hybrid tribunals, invariably established in post conflict situations, and a reason that the challenges inherent in establishing hybrid tribunals are enormous. If great care is not taken in planning hybrid courts, they can easily fail and thus contribute to ongoing impunity in places where violence has already damaged the pursuit of justice.

The record of the ECCC has shown that failure to adequately acknowledge and plan for a range of predictable challenges can significantly diminish a court’s ability to deliver justice to those it intends to serve. No two hybrid tribunals can be the same, as each operates in unique circumstances; however, we undermine our ability to bring justice to the victims of atrocity crimes if we do not carefully evaluate lessons learned from other tribunals.

This posting does not seek to answer the question of whether a hybrid tribunal is an appropriate justice mechanism in CAR or Sri Lanka because preliminary decisions in that regard have already been made. Nonetheless, there are certain pre-conditions that should be met in Sri Lanka and CAR if international participation is committed to the establishment of the courts. These conditions arise from the particular situations in Sri Lanka and CAR and cannot be addressed in detail in this blog. They include:

  1. Security sector reform and vetting. This is a minimum measure if the courts are to be able to protect officials and witnesses.
  2. Incorporation into domestic law of an adequate legal framework to try crimes of international complexity.
  3. Acceptable legislation eliminating amnesty and immunity from prosecution applicable to persons on all sides of the conflict.
  4. Evidence of political commitment from all key parties, including donors and the UN, to support a process that meets international fair trial standards for the life of the court.
  5. The hybrid tribunal proposed for CAR is intended to operate alongside investigations by the ICC into crimes arising from the same conflict. While it is understood that the ICC’s investigation of “most responsible” perpetrators has priority over CAR investigations, it is not clear how or if communication, division of responsibilities, or sharing of information or resources will be handled. There could be important efficiencies achieved by a cooperative relationship between the two institutions. The execution of arrest warrants, security for the courts, investigative assistance, training and capacity building, and witness protection programs might be effectively consolidated in a manner that could prove a model of cooperation that benefits both courts. However, this result is unlikely to happen without considerable efforts by the special court, the ICC, and other international authorities. Without streamlined procedures, cooperation might easily falter and could conceivably degenerate to unhelpful competition.

Lessons from the ECCC Regarding Needs of the Hybrid Tribunals in Sri Lanka and CAR:

Domestic Political Will. Sustained domestic political commitment to hold fair trials that are marked by judicial independence and compliance with international standards is a threshold criterion for a successful hybrid tribunal. The ECCC experience has shown that, regardless of the “protections” built into a hybrid system, it cannot operate with judicial independence if the country’s chief executive seeks to influence domestic judicial officials. Judicial independence from political or executive control remains a problem in the Sri Lanka and CAR domestic systems. Statements by the executive in support of the independence of any tribunal are helpful but insufficient to insure a successful process. Government officials must remain vigilant and committed in supporting the reality and the appearance of the independence of judicial officials.

In countries without a record of judicial independence, the structure of any hybrid tribunal must include majority international control of investigative, prosecutorial, and judicial decision-making. The bizarre system put in place at the ECCC provides for Cambodian majorities in court chambers, but then tries to balance the system with presumptions, “supermajority voting,” and other complicated and non-transparent procedures. This has proved an ineffective substitute for international control as a protection against political interference.

In Sri Lanka, where no decision has been made as to the composition of the judicial chambers, the court’s designers should look honestly at Sri Lanka’s track record for judicial independence and require a majority of international judges, free of domestic control, in all chambers. In CAR, where the SSC statute already provides for a majority of domestic judges, consideration must be given to a revision to reverse the majority—or other substantive protections to ensure that political interference in judicial decision-making does not undermine the basic fairness and credibility of the court.

Long-term Funding. Securing the commitments to adequate fund the tribunals is necessary for a stable and independent court. Reliance on voluntary funding from international donors that must be secured on a yearly basis is a grossly inefficient and dangerous funding strategy. It carries the risk that functions essential to fair trials and an effective tribunal will be sacrificed because of lack of funding.

In addition, secure funding for outreach is also vital if the court is to be relevant to the population. Voluntary funding by donor states, subject to renewal on a yearly basis, continues to undermine the effectiveness of the ECCC in essential areas such as outreach, victim and witness support, and translation services. In addition, it has led to several significant time periods where Cambodian staff worked unpaid.

Hybrid tribunals in both Sri Lanka and CAR will rely largely on international funding. Realistic budgets and time frames must be developed for the courts and sustained commitments should be secured from the UN or other donors before the courts are established.

UN Commitment to Protect International Standards. An express commitment from the United Nations (and key states) to insist that international fair trial standards—including judicial independence—are honored, and to take effective action to correct any failings in this regard, is essential to the success of hybrid tribunal. If the United Nations—or any other international party involved—is weak, timid, or ineffective in this regard, a credible tribunal is likely impossible. Such a commitment is particularly important in circumstances, as in Sri Lanka and CAR, where there is little public faith in judicial or other governmental institutions to operate within the bounds of the international standards. The UN’s lack such a commitment in Cambodia has led to the court’s credibility being diminished in the eyes of Cambodians and internationals alike.

A central reason for international participation in hybrid tribunals in Sri Lanka and CAR is the need safeguard international standards, particularly judicial independence. If the international participants are not willing to do so with uncompromising fidelity, the purpose of their participation fails. If international standards cannot be generally safeguarded at any point in the process, the international participants must be willing to cease involvement in the court.

Selection and Training of Judges and Court Staff. Politicized domestic control in the selection of Cambodian judges at the ECCC undermined the independence of the court and public confidence in its work. Political control of judicial decision-making is widespread in Cambodia and several of the judges selected by the government, in a process that mirrored the process for domestic courts, had public histories of highly questionable adherence to political instructions. Civil society attempts to have input into the selection process were ignored. Under such circumstances, the ECCC was never free of suspicions of political interference driven by current government interests.

In Sri Lanka and CAR, where political independence of the judiciary is of concern, merely grafting the domestic system onto a hybrid tribunal will perpetuate the very problem that the hybrid structure was designed to prevent. If public confidence in the court is to be nurtured, it must start with a judicial selection process designed to ensure independent jurists are selected. This may require international involvement in the selection process, or specialized criteria or processes incorporated into the domestic system.

In addition to the judicial selection process, professional procedures for selecting staff at other levels must be instituted to ensure the capacity to efficiently perform the court’s work, to advance freedom from political interference, and to avoid the participation of persons involved in past human rights abuses. The failure to adequately detail such procedures at the ECCC lead to a corruption scandal in which it was revealed that staff were forced to agree to kick back a portion of their salary in order to be hired and maintain their position. This system did not ensure that the most qualified persons were hired and undermined moral and confidence in the court.

Ongoing training is essential to both the quality of a hybrid court’s work and the goal of building the capacity of domestic participants. Not all international staff at the ECCC had significant background in internationalized criminal courts and many would have benefitted from ongoing training. Domestic staff are unlikely to have had any international experience and need ongoing training to develop substantive capacity to assume leadership roles. Training programs can also have the important benefit of encouraging the joint exercise of responsibilities by domestic and international staff and officials. At the ECCC, unfortunate divisions between domestic and international staff developed in some sections of the court partially because of differences in staff training and capacity. Substantive joint training can build the confidence of domestic staff and the willingness of international staff to share responsibility.

Competent Defense Counsel. Procedures and funding for international defense counsel are essential to maintaining international standards in a flawed or under-developed domestic system. Such counsel must themselves be held to international standards of integrity and practice. The ECCC system of funding international defense counsel to work alongside domestic lawyers for the accused made a critical contribution to the fairness of trials and to capacity building for domestic lawyers who had no previous experience with the issues facing their clients.