This guest post is written by Heather Ryan, who is currently monitoring the ECCC for compliance with international standards and best practices. Part I of this three-part series is available here, and Part II is available here. The views expressed below do not necessarily reflect the views of the Open Society Justice Initiative.
This post will focus on lessons from the hybrid tribunal established in Cambodia, the Extraordinary Chambers of the Courts in Cambodia (ECCC), which may be applicable to establishing proposed hybrid tribunals in Sri Lanka and Central Africa Republic (CAR). In particular, it will look at how hybrid tribunals can ensure that the court remains relevant to and serves victims and affected communities.
Building Domestic Capacity. Building needed domestic legal capacity is viewed as a goal and an advantage of hybrid tribunals. The ECCC experience demonstrates that such capacity building can be elusive and does not happen without a commitment of resources, time, and leadership by both international and domestic officials. The goal of domestic capacity building should be embedded in the design of the court, including the allocation of funding and responsibility within the court. In addition, increased capacity in domestic legal institutions resulting from the presence of a hybrid tribune will only occur if there is strong domestic political will and domestic leadership to advance the national legal system.
Prosecution Strategy. In circumstances where domestic trust of the judicial system is limited, it is critical that the prosecutor develop and articulate a prosecution strategy that is objective and evenhanded so as to minimize the appearance of political manipulation or motivation in choices about who is targeted for prosecution. The strategy must incorporate and devote investigative expertise to address gender based violence widely reported in both Sri Lanka and CAR.
In Cambodia, the prosecution was not aligned on a transparent strategy—largely because of political attempts to control the strategy—contributing to the perceptions of political interference surrounding the court. Likewise, professional investigation of gender based violence was not instituted until victims advocacy groups brought relevant evidence to the court.
Security and Witness and Victim Protection. Because the ECCC began operations decades after the crimes in question were committed, physical security for witnesses and victims was not a major challenge for the court. This will not be the case in Sri Lanka or in CAR, where threats to witnesses are likely to be a serious problem. Security measures for court officials and witnesses must include adequate statutory protections as well as expertly trained professionals and a well-funded program to ensure all parties feel secure participating in the investigation and trial process. This system must be prioritized and in place when investigations begin.
Efficiency Considerations. Protracted negotiations between the UN, donors, and the government of Cambodia over details of the ECCC strained the patience of a population seeking an end to impunity. In addition, years-long investigations, trials, and appeal processes have greatly frustrated Cambodians and diminished their interest in the court. An unwieldy procedure of long dual investigations first by prosecutors, and then by investigating judges, before beginning long trials at the ECCC was counterproductive. The excessive length of the proceedings adds to the cost of the court and produces “donor fatigue.” It should not take years to “negotiate” a statute for a court. The procedures of the court must be arrived at quickly and focus on efficiency without sacrificing international standards.
Acknowledging that prosecuting atrocity crimes consistent with international standards is an inherently complex process, early efforts to streamline the process from investigation and prosecution strategy to trial and appeal procedures are essential so that the court does not cost so much and last so long that it strains the patience of the population it seeks to serve and undermines its own credibility.
Institutional Commitments to Outreach and Civil Society Involvement. The Cambodian experience vividly demonstrates that active outreach to the affected population is essential to the credibility of a hybrid tribunal. Further, it is clear that robust civil society participation is necessary to effective outreach. If a court is to have impact with the public, it must make institutional commitments, including dedication of funding and staff, to:
- Ongoing outreach that effectively meets the population’s needs to follow and understand the work of the tribunal;
- Supporting and funding civil society to provide monitoring, outreach, and victim education and related functions that assist the court in meeting its goals; and
- Promote transparency in all court operations to the maximum extent consistent with the need to protect the rights of the accused and to protect witnesses and victims.
Civil society work in support of these efforts was effective in Cambodia during a part of the life of the ECCC, but after the first trial funding for such activities became scarce for both the court and for civil society. Loss of public interest and support for the court resulted from this decline.
Reparations and Victim Participation. Tying reparations directly to criminal cases or liability may be problematic in mass crime cases such as exist in Sri Lanka and CAR. The number of persons affected by the violence who may be entitled to reparations is far greater than the number of persons who might be able to tie a reparations claim directly to the acts of an accused person before a hybrid tribunal. In addition, the accused are unlikely to have assets sufficient to fund meaningful reparations. A reparation system, independent of criminal justice proceedings, can be far more efficient and effective in serving the reparation rights of victims of international crimes. The ECCC’s system of awarding only “moral” reparations to the limited number of victims who are civil parties in the limited number of cases before the court has proven only minimally satisfactory to a few victims, and greatly frustrating to a huge number of victims who cannot or choose not to participate as civil parties.
On the other hand, the ECCC’s process for victims of crimes to participate and tell their stories to the court has proven an important advantage for victims and for the court’s ability to connect with a broad range of Cambodians. Although far from perfect, many of the aspects of the victim participation system developed at the ECCC could serve as examples for designing systems in Sri Lanka and CAR for victim participation.
Tribunal Must Be Part of Broader Transitional Justice Program. A hybrid court with significant international participation will likely have jurisdiction to try only a relatively small number of persons with leadership responsibility for international crimes. The criminal trials must focus primarily on the guilt of the accused rather than the needs of victims. Such a court cannot meet the many other important transitional justice needs of the population. This limitation should be acknowledged and a tribunal should be established alongside other transitional justice mechanisms including systems for reparations, vetting of military and security services, reconciliation dialogues and activities, psychological services, and community opportunities for discussion of history and truth-telling. The ECCC spurred some NGO activity in these areas in Cambodia that was highly regarded by those who were able to participate. However, without government and institutional commitment to carry out such programs, they suffer from grossly inadequate attention and funding.
The likely limited jurisdiction of any hybrid tribunal in Sri Lanka and CAR will not provide justice for lower-level actors who may be perceived by the population as some of the worst offenders. In Cambodia, the lack of political will for trials of lower-level perpetrators of atrocities is a cause of frustration to many Cambodians and contributes to a sense of ongoing impunity. This issue should be dealt with openly to avoid unmet expectations on the part of victims. Discussion should be initiated about the need for additional trials following the work of a hybrid tribunal with limited jurisdiction.
Consultation with Victims and Civil Society. Any hybrid tribunals in either Sri Lanka or CAR should seek to build public confidence in judicial accountability and public institutions, particularly for victims and affected populations. Active consultation and ongoing communication with affected populations and civil society organizations about their needs and expectations from the court is necessary if this goal is to be met. A court removed from the needs and expectations of the public will soon be regarded as irrelevant at best, and at worst will contribute to further cynicism about the prospect of ending impunity for atrocity crimes. In addition, local commitment and support for the court from civil society can greatly enhance its effectiveness. This can only be gained by including civil society in the planning process.