Hybrid Courts Research Articles

Jurisdiction of Hybrid Courts in the Light of International Criminal Law. The Case of Cambodia and Sierra Leone (Part II)

The idea of establishing hybrid or internationalized tribunals arose in the context of the law performance of international ad hoc tribunals of the former Yugoslavia and Rwanda in the view of several experts. In addition, trough these courts an attempt was made to reach a compromise between the national criminal jurisdiction of the states and the international one. Or, in the opinion of those who promoted this concept, the involvement of local experts in the examination of illegalities committed on the territory of these states could awaken greater trust on the part of society in general and the victims, especially in the act of justice, and subsequently even lead to the start of the reconciliation process of the respective societies. We proposed two cases for this study, which are the most well-known — the Extraordinary Cambers for Cambodia and the Special Court for Sierra Leone.

Pertanggungjawaban Pidana Pemimpin Negara Akibat Kejahatan HAM Berat dan Yurisdiksi International Criminal Court

The aim of this research is to understand the concept of handling carried out by the International Criminal Court, especially through the establishment of a Hybrid Court for serious human rights crimes committed by state leaders and also to understand the concept of accountability for state leaders who have immunity related to serious human rights crimes within the jurisdiction of the International Criminal Court. This research uses a normative juridical method where in the process it examines research from literature study materials and legal provisions, in this case the Rome Statute. Criminal liability of state leaders is a form of international legal instrument used to enforce accountability for international crimes committed by state leaders. International crime is something that has been happening for a long time. Various international crimes committed by state leaders have been in the spotlight of history because of the atrocities committed by the leaders of a state. This research will examine the responsibility of state leaders for serious human rights crimes committed by Liberian President Charles Taylor based on the jurisdiction of the International Criminal Court through the establishment of a hybrid court.

An Analysis of Albania’s Encounter with International Criminal Justice

Abstract This article aims to provide an account on Albania’s encounter with international criminal justice, reflecting on the data collected under EU cost Action ca18228 and the States’ Scoping Survey. It looks at how Albania has engaged or not engaged with international criminal justice, in relevant provisions of domestic law, in its level of support and cooperation with international and hybrid courts, in domestic prosecutions of international crimes, and memorialisation activities. The findings suggest that the response to international crimes committed in Albania or abroad has been mixed. While little, if any accountability has been sought for the horrendous crimes during its communist past, Albania’s response to international crimes abroad in neighbouring Yugoslav territories was that of justice and accountability for those who committed crimes. The Kosovo War prompted a strategic shift in Albania’s approach, as the Kosovo Specialist Chambers (ksc) faced criticism highlighting tensions between accountability and nationalistic sentiments.

The Facade of Justice: Transitionless Transitional Justice of Ethiopia

The Ethiopian government has committed to a transitional justice process to address gross human rights violations through investigation, prosecution, truth-finding and revelation, reconciliation, conditional amnesty, reparation, and institutional reforms. Despite these efforts and international support, this mechanism will unlikely resolve Ethiopia's political and security issues. The government's lack of intent to cease ongoing conflicts and its continued human rights violations hinder effective participation in implementing the transitional justice process. Furthermore, the involvement of non-state and foreign actors, which are beyond the state’s authority, in gross human rights violations undermines accountability. Victims and witnesses in conflict zones face significant barriers to participation due to the government's limited reach and fear of retribution. Gross human rights violations by the government and the Ethiopian National Defense Force raise doubts about the accountability of civil and military leaders through a government-controlled transitional justice mechanism. To address these challenges, the current government should relinquish power to a transitional government to mitigate undue influence on the justice process, cease hostilities, and hold officials accountable. If the government resists establishing a transitional government, a hybrid court with foreign judges and prosecutors should handle high-profile cases, while domestic courts, with strict measures to ensure impartiality and independence, should address other cases.

Improving the Information and Legal Support of the Judicial System of Ukraine: Experience of the European Court of Human Rights

The research proposes a comprehensive approach to modernizing the information and legal support (ILS) of the judicial system of Ukraine, given European integration processes and the war of Russia against Ukraine. The need for substantial modernization of existing court automation systems to integrate with European systems and improve analytical capabilities for processing large data sets was identified. It was specified that the legal framework for the functioning of court information systems (IS) must be adapted to European legislation, and the organization of data warehouses and information flows must comply with EU standards. The principles of the functioning of court information systems should ensure the possibility of easy integration with the IS of the EU. To investigate war crimes committed by Russia in Ukraine, it is proposed to establish reliable ILS, given the case law of the European Court of Human Rights (ECHR) in cases of human rights violations during conflicts. An innovative approach based on the use of artificial intelligence (AI) tools is proposed to increase the efficiency of judicial decision analysis and improve the ILS of the judicial system of Ukraine. It has been proven that the integration of the judicial systems of Ukraine and the EU is possible, provided there are reliable data analysis tools, process standardization, digitalization, data security, and integrated registers. The effectiveness of applying IT tools in the ILS of courts has been confirmed. It is proposed to establish specialized hybrid courts in Ukraine with international experts to address war crimes, harmonize legislation with international law, and implement the case law of the ECHR.

Jurisdiction of Hybrid Courts in the Light of International Criminal Law. The Case of Cambodia and Sierra Leone (Part I)

The idea of establishing hybrid or internationalized tribunals arose in the context of the law performance of international ad hoc tribunals of the former Yugoslavia and Rwanda in the view of several experts. In addition, trough these courts an attempt was made to reach a compromise between the national criminal jurisdiction of the states and the international one. Or, in the opinion of those who promoted this concept, the involvement of local experts in the examination of illegalities committed on the territory of these states could awaken greater trust on the part of society in general and the victims, especially in the act of justice, and subsequently even lead to the start of the reconciliation process of the respective societies. We proposed two cases for this study, which are the most well-known - the Extraordinary Cambers for Cambodia and the Special Court for Sierra Leone.

A Critical Analysis of the Hybrid Court for South Sudan

It has been shown above that the existing examples of hybrid tribunals are too distinct from each other to be properly assessed together as one model of international criminal prosecutions. Each hybrid tribunal is distinct in its historical background, its manner of establishment and legal personality. The South Sudan Hybrid Court is no exception. This article analysis, inter alia, the composition and structure, jurisdiction of Hybrid Court for South Sudan, its relationship with domestic courts and other transitional mechanisms.

The Special Criminal Court and the challenge of criminal accountability in the Central African Republic

States which encounter massive human rights violations usually implement various mechanisms of achieving accountability. There exists documented evidence of conflict-related international crimes in the Central African Republic (CAR). Still, the perpetrators enjoy impunity as no appropriate measures were adopted to guarantee criminal accountability. The Special Criminal Court (SCC) was established in the CAR in 2015 as a hybrid criminal accountability mechanism. This article with the aid of a qualitative method and a narrative approach aims at investigating the activities of the SCC in the fight against the culture of impunity in a country experiencing persistent human rights violations. As conflict and impunity persist in the socially and politically unstable CAR, a comprehensive synopsis of the SCC and a preliminary assessment of the court and its challenges seven years after creation constitute a domain of investigation that urgently requires a deeper investigation to halt impunity, recurrent hostilities and human rights violations. Why has impunity and violations persisted in the CAR despite the creation of the SCC? The paper identifies critical factors to the success of the SCC, based on previous experiments with hybrid courts. The outcome of this research reveal that the fragile security situation in the country and other factors significantly hinder the court’s objective of serving justice and contributing to durable peace in the CAR.

International Criminal Law and Customary Law for Punishment of the Perpetrators of International Crimes in South Sudan

AbstractThe article examines how to address the report of the African Union Commission of Inquiry on South Sudan, which accuses the Government of South Sudan and the rebels of committing “crimes against humanity” and violating “international humanitarian law” in the war of December 2013. The Commission recommends “an Africa-led, Africa-owned, Africa-resourced legal mechanism, under the aegis of the African Union and with support from the United Nations, to bring those with the greatest responsibility at the highest level to accountability” in a court. Second, the Agreement on the Resolution of the Conflict in the Republic of South Sudan asked for establishing a hybrid court in South Sudan to investigate and prosecute the perpetrators of “genocide, crimes against humanity and war crimes”. The Cabinet of South Sudan approved, in its resolution on 29 January 2021, the establishment of the court. On the other hand, the Government of South Sudan rejected accountability for the perpetrators of international crimes in its resolution at the Transition Justice Conference and recommended “amnesty” for those admitting the commission of international crimes in Juba, Malakal, Bor and Bentiu. The research findings show that amnesty threatens peace and security because customary law rejects amnesty. Its implementation generates systematic vengeance from the clan of those killed. The research recommends the establishment of a hybrid court that adopts the complementarity principle in compatibility with the African customary law of blood compensation. The authoritative national criminal courts in South Sudan omit capital punishment on the grounds that (a) killer(s) pay(s) blood compensation, apok or cot, to the survivors of (a) killed person(s) with 51 cattle. The payment changes the penalties of life imprisonment, which international criminal law imposes on the perpetrators of international crimes and the death penalty, which African criminal law imposes on the confirmed killer(s). Finally, the tribunal imposes 10-year terms of imprisonment on the confirmed perpetrators of international crimes.

An Analysis of the Historiographic Tradition Surrounding the Extraordinary Chambers in the Cambodian Courts

From 1975 to 1979, The Democratic Kampuchea, or the Khmer Rouge, killed between one and a half to two million people, or twenty percent of the population of Cambodia through starvation, torture, and other means. This period is often cited as prime example of a genocide, yet forty years have passed and only four people have been held accountable for these crimes. In 2003, after years of negotiation with the government of Hun Sen, the prime minster of Cambodia from 1985 until the present, the United Nations and the government of Cambodia decided to establish the Extraordinary Chambers in the Courts of Cambodia for the prosecution of the people many believe responsible for the death of over a million people. Yet, from 2003 until the present, as the courts are still in operation, only four people have been prosecuted despite sixteen years and $300 million dollars from the international community.[1] Despite the Cambodian Genocide being a prime example of genocide, the Extraordinary Chambers in the Courts of Cambodia, or ECCC, has proven to be a complete failure for the millions of dead, and the many millions more who lived through the events, and continue to live with the memory every day. Historians, lawyers, and international scholars have debated the issues surrounding why the ECCC has failed to deliver the promises of justice. Over the course of this paper we will be looking at the historiographic tradition surrounding the Extraordinary Chambers in the Cambodian Courts, dividing the works into two different camps. These two camps differ in their opinion on the fatal flaw with regard to the ECCC. These two camps of thought are, one, that political interference by the authoritarian Hun Sen government has, over the courts ten plus years of existence, used its power to prevent any real progress from being made. The other camp argues that the United Nations 2003 agreement with its international standards of justice does not fit into the national ideal of justice and that hybrid courts that attempt to balance international and national priorities have been flawed since its creation. By providing a detailed analysis of these sources the goal will be to find how the two different camps make their arguments and perhaps how scholars have proposed solutions to the difficulties of the Hun Sen government and the UN to attempt to find justice in Cambodia.

The International Criminal Court: Whether the Crime of Aggression in Ukraine

Summary Since the establishment of the International Criminal Court (ICC) almost two decades ago, the crime of aggression has not been tested. The Russian invasion of Ukraine seems to provide a fitting opportunity. However, the ICC lacks jurisdiction over the crime of aggression in the current Russian/Ukrainian war. Nevertheless, 24 February 2022 marked the beginning of a renewed attack, as Ukraine witnessed unimaginable proportions of human rights violations, deaths, sufferings, and displacements due to the Russian invasion. While it is incontrovertible that the crime of aggression has been committed by President Vladimir Putin of Russia against Ukraine, and the ICC has begun the investigation of crimes against humanity and war crimes, jurisdictional questions looms. The ICC is empowered to investigate, prosecute, and punish individuals for international crimes, close impunity gaps, and ensure accountability for the ongoing heinous crimes being committed in Ukraine. How can justice be served specifically to Ukrainian victims and generally to the international community for the atrocities being committed and for the crime of aggression? Since the ICC lacks jurisdiction, would the setting up of a special tribunal or hybrid court be better to deal with the situation? How would such special tribunal deal with the issues of immunity and the practicality of investigations and prosecution? This paper discusses these questions and argues that beyond the referrals to the ICC made by over forty states, it may be imperative for the referring states to utilise the universal jurisdiction principle to investigate and prosecute the crime of aggression.

Avenues for establishing criminal responsibility for international crimes committed during the Russo-Ukrainian armed conflict

The armed conflict between Russia and Ukraine has once again drawn the attention of the international community to an inter-state war in its classical sense. Unfortunately, it also means that a ‘side-effect’ of armed conflicts has resurfaced in the form of international crimes. Both sides accuse one another of war crimes, crimes against humanity and to a degree even genocide. The crime of aggression is also being analysed by academia as the most serious violation of the prohibition of the use of force. Even though the end of war is nowhere in sight, discussion needs to be initiated on how to establish accountability mechanisms for these crimes. This paper will analyse four possible scenarios, weighing advantages and disadvantages along with a reality check to ascertain their feasibility. Firstly, processes before the International Criminal Court will be assessed followed by a quick overview of the role of domestic courts. As the third and fourth possibilities, the establishment of an ad hoc tribunal or a hybrid court will be looked into. The novelty element of the present article lies in the comprehensive comparison of the various international, internationalized and domestic forums with the goal of aiding the decision-making process of the parties and the international community seeking justice for international crimes committed over the course of the armed conflict.

Tribunal for the Russian Aggression in Ukraine: The Need for Accountability

The Russian aggression against Ukraine has raised the need for accountability and international rule of law. Russia through committing the supreme international crime has deliberately violated basic international principles and norms such as state sovereignty and territorial integrity of Ukraine and the prohibition of the use of force. Member states of the United Nations drafted and agreed to create the International Criminal Court to punish the most serious crimes. The Kampala amendments of the Rome Statute on aggression, adopted a decade later, can be activated if the two states concerned have accepted ICC jurisdiction. Russia and Ukraine are not members of ICC, although the unilateral declarations of Ukraine accepting ICC jurisdiction can be exercised for war crimes, crimes against humanity and genocide committed in the territory of Ukraine. The lack of an international mechanism to punish the crime of aggression against Ukraine have triggered calls and actions to create a special tribunal with a limited focus on that crime, based on the development of international criminal law over the past eighty years. The EU recently agreed to establish an International Center for the prosecution of the crime of aggression – to preserve evidence and prepare the analysis of the evidence for the prosecution for future national or international trials – which is considered a first step in that direction. This research will analyze options to create either a special international tribunal or a hybrid tribunal to investigate whether Russia’s acts of violence in Ukraine constitute a crime of aggression and their prosecution. It will examine the legal basis of its establishment and functioning of the tribunal based on previous precedents, such as the International Military Tribunal (Nuremberg), or other specialized courts integrated in a national justice system with international judges – hybrid court. It will also explore the indispensable role of the United Nations in establishing such a tribunal and its implications in ending the conflict.
 
 Received: 13 January 2023 / Accepted: 17 March 2023 / Published: 20 March 2023

Coal–environmental quality nexus in EU-part of the Eastern Bloc: Do socioeconomic factors and bureaucracy play a substantial role?

Based on the fact that the EU-part of the Eastern Bloc has not fared well in transitioning to renewable energy in the last decade compared to other regions of the bloc, this study investigated the impacts of coal consumption, socioeconomic factors and bureaucracy on the environment and the moderating effect of socioeconomic factors and bureaucracy on the coal consumption–environment relationship in the selected bloc. The study used the AMG, FMOLS and DOLS modelling framework and a panel of six countries in the selected bloc from 1990 to 2018. The study established that coal consumption has a significant dampening effect on CO2 emissions in the EU-part of the Eastern Bloc and that bureaucracy in the region amplifies this effect instead of mitigating it. In another corridor, we found that in the midst of the coal–environmental nexus, socioeconomic factors offer a mitigating path towards emission reduction in the region. Policy recommendations directed at addressing bureaucratic hitches associated with the transition to renewable energy in Eastern Europe. The authors propose the inauguration of hybrid courts (specialised) to settle disputes that may arise from indigenes and standing technical committees to increase bureaucratic expertise, which would reduce the permit acquisition period required for wind, hydropower, and solar installation farms and other technicalities associated with the EU funding for the Eastern Bloc.

APPRAISAL OF INTERNATIONAL CRIMINAL COURTS: LESSONS FOR THE GAMBIA ON JAMMEH’S ALLEGED CRIMES

This research is determined to present an appraisal of International Criminal Tribunal for Rwanda (hereinafter referred to as ICTR) from an international law perspective in their quest to serve justice after the perpetration of the heinous atrocities of genocide in 1994 in Rwanda and other criminal tribunals and courts. It examines the failure of the international community to intervene, the raison d’être of ICTR as the main tribunal in this research and its fate. It focuses on the national mechanisms and the need for The Gambia to achieve justice for victims of the former President, Yahya Jammeh by reflecting on Rwanda. These findings are used to gauge The Gambia’s Truth, Reconciliation and Reparations Commission’s (hereinafter referred to as the TRRC) recommendations and The Gambia’s white paper on Jammeh’s alleged crimes. It examines the violation of human rights, the prospects of this white paper and my perspective on possible mechanisms for social justice, integration and cohesion in The Gambia. This research, therefore, finds out that a hybrid court led by The Gambia and supported by judges in Africa is quite relevant to dealing with these alleged crimes because it is established with the aim of addressing this issue of Jammeh’s alleged human rights violations. This is so when The Gambia liaises with the African Union and the Economic Community of West African States to strengthen this hybrid court by providing this court with judges of outstanding legal acumen in hearing cases of such.

Injuring Family Relations through Gross Violations of International Human Rights and Humanitarian Law

Drawing a line between victims and non-victims in the context of gross violations of international humanitarian and international human rights law is not an easy task. On the one hand, mass atrocities lead to widespread victimisation of individuals, groups and communities who suffer from various types of harm and damage incurred in the process of their commission. On the other hand, clearly not every person affected by an ongoing conflict and mass criminality should be considered an injured party. This article addresses such conceptual dilemmas by casting light on the function of family relations as grounds of indirect victimhood. To this end, it identifies two theoretical models of victimhood and showcases how they have been put into practice by international and hybrid courts and tribunals in their respective reparative and punitive regimes.

Complementing the International Criminal Court's Inadequate Prosecution of Terrorism through Hybrid Courts: The Case of Foreign Terrorist Fighters

Complementing the International Criminal Court's Inadequate Prosecution of Terrorism through Hybrid Courts: The Case of Foreign Terrorist Fighters

Kosovo Specialist Chambers As A New Hybrid Court In The International Judicary

Abstract After years of armed conflict and talks with international organisations, the Kosovo authorities agreed to establish an independent judicial body to prosecute the perpetrators of international crimes that took place during the liberation of Kosovo between 1998 and 2000. The Kosovo Specialist Chambers and Specialist Prosecutor's Office, with its jurisdiction over crimes against humanity, war crimes, and other crimes under Kosovo law is one of the newest judicial bodies operating in the international arena. Despite several years of activity of this body, it is not clear whether Kosovo Specialist Chambers is an international court or a hybrid court in its pure form. Outlining the characteristics of a typical hybrid court, followed by an analysis of the legal framework and functioning of the Kosovo Specialist Chambers will allow for a determination of whether this court is a hybrid court or a completely new type of.

Seeking ‘Truth’ After Devastating, Multi-Layered Conflict

Abstract In August 2015, the Government of South Sudan and other parties to the country’s civil conflict signed a peace agreement, the Agreement on the Resolution of the Conflict in the Republic of South Sudan, aimed at ending the civil conflict that broke out on 15 December 2013. After this agreement failed to hold, South Sudan descended into a second wave of civil conflict. A recommitment to the agreement was secured through regional efforts on 12 September 2018. Dubbed the Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan, the agreement provides a transitional justice architecture which includes a truth commission, a hybrid court and a reparations authority. This paper examines the potential of the proposed Commission for Truth, Reconciliation and Healing to contribute towards sustainable transitional justice solutions in South Sudan, based on contemporary standards and practice of transitional justice. Through historical, descriptive and analytical approaches, the paper grapples with South Sudan’s complex truth-seeking journey following years of multi-layered conflict.

The hybrid court – an appropriate solution for the protection of human rights within the territory of the Self-proclaimed Dniester Republic

Although the practice of hybrid courts was aimed at repressing international crimes, it also represents a reliable and effective model for examining cases on violation of fundamental human rights and freedoms within the territories with contested jurisdiction, not in the light of territorial dispute settlement but from the perspective of remediation, prevention and infringements ending rational within territories where there is no fair, constitutional and independent justice system. Such courts would represent the optimal solution for assessing any cases on human rights violations on the territory of self-proclaimed Dniester Republic in line with the lawfulness exercise, until the final settlement of the Transdniestrian conflict. The jurisdiction could include a panel composed of 7 judges, of which 3 would be appointed by the constitutional authorities of the Republic of Moldova, pursuant to different formulas, 2 – appointed by the UN and 2 – appointed by the OSCE. At least 3 judges shall be preferably from among the former judges of an international jurisdiction (e.g. the International Criminal Court, the European Court of Human Rights etc.). The European Convention on Human Rights could serve as the applicable substantive law, and the legislation of the Republic of Moldova – as the procedural law. The impact of creating such a court would be pivotal for the establishment of a human rights „coverage area” on the left bank of the Dniester. It is recommended however, for the proper functioning of this jurisdiction, especially endowed with confidence in the act of justice under the guarantee of international judges, that the origin of this jurisdiction shall be an external one, preferably a UN based one.