Hybrid Tribunals Research Articles

Not Nuremberg—Histories of Alternative Criminalization Paradigms, 1945–2021: An Introduction

Abstract: The Western myth of Nuremberg has dominated understandings of the evolution of international criminal law. Enshrining the International Military Tribunal as a critical point of origin, this paradigm has developed a narrative of post-war liberal progress, in which a universal model of externally-delivered, individualised criminal justice was interrupted by the exigencies of the Cold War then rediscovered through various international and hybrid tribunals in the 1990s and early 2000s, culminating in the creation of the International Criminal Court in 2002. Often instrumentalised to protect Western interests, the Nuremberg myth marginalises the histories of a wide range of criminalisation and accountability practices that existed, both at the time and since. In this essay, we introduce alternative practices and alliances that challenged both the Nuremberg myth and the specific accountability model it propagates: from the United Nations War Crimes Commission, which contested the colonial erasures of Nuremberg at the time, to the move towards localised forms of post-atrocity justice such as the gacaca courts in Rwanda in the 2000s. The essays in this dossier question the idea that international criminal law hibernated for four decades after Nuremberg and demonstrate how ideas of criminalisation have been shaped by numerous shifting mid- to -late twentieth and early twenty-first century ideologies, such as anti-colonialism, Communism, various iterations of human rights, racial justice, neoliberalism, or, more recently, populist re-imaginings of the global. Shorter Abstract: The Western myth of Nuremberg has dominated understandings of the evolution of international criminal law. This paradigm has developed a narrative of post-war liberal progress, in which a universal model of externally-delivered, individualised criminal justice was interrupted by the Cold War then rediscovered through various international tribunals in the 1990s, culminating in the International Criminal Court in 2002. The essay introduces alternative practices challenging the Nuremberg myth and the accountability model it propagates. The dossier's essays question the supposed 40-year hibernation of international criminal law after Nuremberg and demonstrate how ideas of criminalisation draw on numerous shifting post-war ideologies.

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.

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

Russia’s Attack on Ukraine; A Review of the International Criminal Court’s Capacity to Examine the Crime of Aggression

Background: 24 February 2022 shall be remembered as a day on which the international law principle prohibiting the use of force was breached once again. This incident could come under scrutiny from several different standpoints. The present study looks at this occurrence via the lens of international criminal law and the occurrence of the crime of aggression and its examination by the International Criminal Court (ICC). This study aims to analyse whether the inclusion of the crime of aggression in the ICC Statute was symbolic and practically useless or whether it could move the international community one step closer to the end of impunity. To this end, the incidence of aggression as defined by the ICC Statute will be determined after an assessment of the justifications offered by Russia. Despite the prohibition entailed in Art. 15 bis (5) of the Statute, which has led the doctrine to rule in favour of the Court’s lack of jurisdiction, a solution to this impasse must be sought. Methods: This paper uses doctrinal methods, and its dominant theoretical perspective is positivism. It relies on an accurate description and analysis of Russia’s invasion as aggression and the capacity of the court to deal with it. The authors has attempted to collect as much pertinent data as possible, analyse the same, and review the applicable and relevant legal instruments and literature. Other publications on this subject matter accepted the inability of the ICC to prosecute the Russian aggression. The novelty of this paper is its search for the few loopholes in the rules and judgments of the ICC to investigate this crime in Ukraine. As a result, recommendations are made to stop Russia’s wrongdoing while also offering suggestions and answers. This would ultimately result in the protection of international law and the preservation of Ukrainian territory. Conclusions and Recommendations: The Russian claims, namely, anticipatory and collective self-defence, humanitarian intervention, and intervention by invitation, cannot face the crucible of international law norms, and, as such, the attack is a flagrant violation of the UN Charter. Thereafter, the exercise of jurisdiction seemed challenging, bearing in mind that Russia and Ukraine are not members of the IC, that the situation was not referred to the Security Council, and that the declaration issued by Ukraine accepting the Court’s jurisdiction entailed a number of limitations (being restricted to crimes against humanity and war crime). Nonetheless, a case could be made that the Court has some capacity to engage with the question of an act of aggression based on a study of the Court’s jurisprudence regarding such declarations and the Trial Chamber’s interpretation of the phrase ‘occurrence of crime in the territory of the State Party’, affirming a positive interpretation of Art. 15 bis (5) and confirming the possibility for the presence of Ukrainian secessionists in the decision to attack. According to the authors, the following recommendations merit attention: 1) the necessity of a teleological interpretation of the Statute’s articles by the Prosecutor and the Member States Assembly’s solemn efforts to amend and deal with jurisdictional burdens in the Court’s competence to entertain the crime of aggression; 2) reviewing the possibility of establishing an ad hoc or hybrid tribunal via an agreement between Ukraine and the UN; 3) consistent state practice in not recognising the auto-proclaimed governments at Donetsk and Luhansk; 4) establishing Russia’s civil liability and the payment of proper compensation by the same.

A Framework for Synergy: Synthesizing the Relationship Between the International Criminal Court and Hybrid Tribunals

A Framework for Synergy: Synthesizing the Relationship Between the International Criminal Court and Hybrid Tribunals

The International Criminal Court and immunity: South Africa’s legal obligations

February 2022 marked the invasion of Ukraine by the Russian Federation (Russia). The instantaneous and vehement reaction from the international community underscores the gravity of the situation. Calls for Russian President Vladimir Putin (President Putin) to immediately halt the invasion and cease the perpetration of senseless attacks and atrocities against the people of Ukraine resounded across nearly every corner of the globe. The invasion has garnered international attention, and there have been many calls for accountability—for President Putin and for those under his command who committed these acts on his orders. Various organisations and academic circles have already delved into this query, with suggestions ranging from establishing specialised ad hoc or hybrid tribunals to prosecuting individuals implicated in crimes within Ukraine.

Theorizing empirical court research: The test case of the trial of Hissène Habré

AbstractThe purpose of this article is to advocate for new methods of studying international law. Hissène Habré, former President of Chad, was convicted by a hybrid tribunal in Dakar. Our book on this judicial process (The President on Trial: Prosecuting Hissène Habré, Oxford University Press, 2020) develops a novel empirical format of first-person testimonials, followed by expert analyses, to trace and contextualize the decades-long story of attempts to bring Habré to justice. The empirical materials collected in our book demonstrate that the Habré trial challenges a linear distribution of power from international (global) actors to local, demonstrating rather a series of horizontal relations between the local and international. Based on this research experience, the article lays out the method we developed. It facilitates an assessment of the legal and political impact of court decisions, routines and broader bureaucratic politics through which the practices of judging are constructed. “Justice” does not speak with one voice; it is made up of multiple actors with different professional interests and personal goals. It is also impacted by power dynamics and by the structure of the institution, including by institutional routine and legal bureaucracy.

Scales of Justice: “International Standards” and “Local Ownership” at a Hybrid Tribunal

AbstractThis paper argues that a politics of scale plays a fundamental but uninterrogated role in internationalised criminal justice processes such as hybrid tribunals. Scale discourses—producing specific notions of “the international” and “the local”—are so naturalised in these endeavours that their regressive effects remain unacknowledged. Following Annelise Riles’ ground‐breaking analysis of the politics of scale in colonial law, and feminist critiques of scale discourse in accounts of globalisation and conflict, we think critically about “the international” and “the local” in a postcolonial and post‐conflict justice context. Using the case of the Extraordinary Chambers in the Courts of Cambodia (ECCC), we specifically examine the operation and effects of discourses of “international standards” and “local ownership”. We argue that denaturalising scale in international criminal justice would serve a wider project to decolonise international law and address the specific forms of disenfranchisement currently enacted by dominant “scales of justice”.

Sharon Weill, Kim Thuy Seelinger, and Kerstin Bree Carlson (editors), The President on Trial: Prosecuting Hissène Habré

For a time, the creation of international criminal justice institutions seemed to follow a predictable and linear path. Following a long period of inactivity after the post-World War II trials, there was a burst of creation starting in 1993 with the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), followed by the establishment of a series of ad hoc international or hybrid tribunals for Rwanda, Sierra Leone, and Cambodia.1 The culmination of this creative period was the International Criminal Court (ICC), the first permanent international criminal court, established by the Rome Statute in 1998 and ratified by the required 60 states that would allow the court to come into existence by 2002. The ICC seemed to offer a simple and comprehensive solution to the expensive and impractical problem of trying to establish an ad hoc tribunal following each new atrocity. It obligated states to investigate and...

Identity politics and hybrid tribunals

AbstractMany of the conflicts that have led to the creation of hybrid tribunals were identity-based conflicts – people who identified as members of one tribe, race, ethnicity, or religion used these distinctions as grounds to attack and persecute another group who often responded in kind. This reality means that the criminal justice processes that take place in the wake of such conflicts must take issues of identity seriously to be effective. This article uses the notion of framing contests to examine different identity-based responses to international justice. Defenders of the tribunals seek to portray them as impartial observers while critics paint them as illegitimate outsiders. Because hybrid tribunals have identity considerations as features built into them, they are better suited to promote their own legitimacy in these framing contests. These features include the personnel they use, the witnesses they call, the strategies their prosecutors deploy, and their local outreach programmes. Each of these tools can be used to frame the tribunal as a legitimate means to promote criminal justice and thereby advance the values of transitional justice.

Close to Home

Abstract For decades, the ad hoc tribunals and the International Criminal Court have taken the presumptive spotlight in prosecuting international crimes cases, including those involving conflict-related sexual violence. However, recent progress in prosecuting conflict-related sexual violence in national courts has started to both fulfil and complicate the notion of ‘complementarity’ between these two arenas of international criminal justice. This article presents the historical antecedents and current diversity of national courts addressing conflict-related sexual violence. It first casts back to the 1940s, to the little-known efforts of the United War Crimes Commission that guided national authorities in their prosecution of wartime atrocities including rape and forced prostitution. It then focuses on three kinds of national courts addressing conflict-related sexual violence today: military tribunals, hybrid tribunals and ‘purely domestic’ specialized chambers, highlighting key case studies and different ways these courts have engaged international actors. In conclusion, the article confirms the growing importance and diversity of national courts in the prosecution of conflict-related sexual violence, identifying ways the international community can better support survivors’ access to this more local justice.

Combating Impunity for Mass Atrocities: A Call for Hybrid Tribunals

International criminal law, in its current state, is broken. A general lack of resources among the International Criminal Court and domestic judiciaries, compounded by legitimacy crises afflicting both judicial mechanisms, is contributing to widespread impunity for atrocity crimes. In order to mitigate this expanding impunity, this paper calls for a return to the hybrid model of prosecution for mass atrocities by establishing courts that blend aspects of international law with that of the state or region where the atrocities were committed. This paper examines the unique ability of the hybrid model to combat impunity both through accountability and by achieving broader transitional and restorative justice goals for post-conflict communities. In support of this renewed call for hybrid courts, this paper employs a geographic case study analyzing the failures and achievements of the two Asian hybrid courts – the Special Panels for Serious Crimes in East Timor and the Extraordinary Chambers in the Courts of Cambodia – in terms of accountability, legitimacy, and capacity building. Drawing on the experiences of the two Asian hybrid tribunals, this paper calls for a global return to the hybrid model of prosecution for mass atrocities, albeit with modifications that consider the necessary limitations on this adjudicatory model.

Nazi Crimes in Poland. A Never-Ending Search for Justice

This article deals with the model for prosecuting Nazi crimes committed in Poland in the light of the model presently used in international criminal law. It tries to answer the question: should the investigation of crimes of international law be handed over to transnational tribunals? Should they be hybrid tribunals involving a national factor, or completely supra-national tribunals like the International Criminal Court? Is it legitimate to transfer jurisdiction over these matters to national courts? The case of unpunished Nazi crimes in Poland may give a partial answer to this question. Certainly, various attempts made after World War II, including procedures brought before Polish courts, have contributed to understanding the function of international criminal law, and finding the answer to the question of the best model for prosecuting crimes of international law. At present, we also have the experience of international criminal tribunals, in particular the ICC, which is an efficient machine for prosecuting crimes of international law. Interesting conclusions can be drawn from its functioning that could improve the work of Institute of National Remembrance (IPN) prosecutors, and shed new light on the considerations regarding the prosecution of Nazi crimes in Poland after World War II.

Development of Superior Responsibility at the ECCC

Abstract This article aims to describe the development process of superior respon­sibility doctrine at the Extraordinary Chambers in the Courts of Cambodia. Superior responsibility is contained in all Statutes of ad hoc tribunals and also the Rome Statute. However, the case of ECCC is distinctive for its special structure and applicable law. As such, the ECCC is being often called ‘hybrid’, court. This Article aims to analyse travaux préparatoires to the ECCC Statute and ECCC Statute itself when it comes to superior responsibility. This analysis will be followed by the ECCC case law. In 2019, the closure of ECCC is anticipated. As such, the first complex analysis on superior responsibility and its applicability by the ECCC is appropriate and can be used as guidance for other already established or future hybrid tribunals. To some extent, the findings can also be used for the application of superior responsibility by the ICC.

United Nations Security Council Resolution 2379

On September 21, 2017, the United Nations Security Council unanimously passed Resolution 2379 mandating the establishment of an Investigative Team to collect and preserve evidence for use in national courts of international crimes carried out by the terrorist group Islamic State in Iraq and the Levant (ISIL). Resolution 2379 marks a growing trend in the United Nations’ establishment of investigative mechanisms to support the domestic prosecution of international crimes, in lieu of referrals to the International Criminal Court or creation of ad hoc international or hybrid tribunals.

Achievements and Legacies of the Khmer Rouge Trials: Reflections from Inside the Tribunal

This article is an edited transcript of a panel discussion that was held in Melbourne in December 2017. The panel comprised four speakers, each with significant professional experience working at Cambodia’s hybrid tribunal, the Extraordinary Chambers in the Courts of Cambodia (ECCC). This panel was the first time such key insiders have come together outside of Cambodia and in an academic context to reflect on more than 10 years of the Court’s operation and their personal experiences there. There is much to be gained by enquiring into the lived experiences of those working at internationalised tribunals. In this article, unique insights are shared in relation to ECCC prosecution and the Court’s legacy of historical and procedural record, the Court’s establishment and outreach, the legal representation of ECCC participating victims (civil parties), and supporting witnesses across different cultural and legal contexts.

Expediting the ICC Criminal Process: Striking the Right Balance between the ICC and States Parties

When establishing the ICC, the sole permanent international criminal court, States ensured that they would play a legislative role larger and more direct than the ad hoc and hybrid courts and tribunals. States Parties have, however, acknowledged that, given the time they spend interpreting and applying the ICC legal framework, the judges are uniquely placed to identify and propose measures designed to expedite the criminal process. Accordingly, the ICC has followed a dual track. First, it has pursued an amendment track, which requires States Parties’ direct approval of ICC proposed amendments to the Rules of Procedure and Evidence. Second, it has implemented practices changes that do not require State involvement. This interactive process between the Court and States Parties reflects their common goal to expedite the criminal proceedings. The future of this process will rely on striking the right equilibrium between the respective roles of States Parties and the Court.

A Taxonomy of Proportionality in International Courts

If lawyers seek to define a 'universal' or 'global' norm through the trends of international courts rather than through domestic or even regional ones, the arguments of proportionality's champions who claim its 'near' universal appeal as a judicial tool become problematic. In the international adjudication of individual rights, the 'principle of proportionality’ is often clear and explicit, but 'proportionality as a judicial tool' produces inconsistent results. For example, the ECtHR, through cases such as Behrami and Saramati, employs a proportionality that elevates institutional conceptions of rights over individual ones, whereas the ICJ, in adjudicating the human right to self-determination, has debatably done just the opposite in recognizing the 'unilateral' form of that right. Moreover, the ECtHR and the ECJ both tend to avoid proportionality altogether when it is 'hierarchy inhibiting'. In international humanitarian law, the notion of proportionality is infused with outdated assumptions about symmetry of capacity and ends that are justifiable, and in ICL, while the ICC and hybrid tribunals claim to recognize a plurality of retributive or expressive punishment, the principle of proportionality disintegrates this claim through practice (this is evident through sentencing at various ICL tribunals, for example). In international economic law, meanwhile, the WTO's proportionality based the 'General Exceptions' of GATT Art. XX produce inconsistent 'proportions' with respect to 'public morals'; and in international investment law (IIL), arbitral tribunals such as the ICSID asymmetrically apply proportionality to the actions of states and not to investors.

An Ad-Hoc Tribunals as Solution to Impose War Crimes Accountability in Syria?

The calling on the Syrian Government to investigate allegation of grave abuses and to prosecute those responsible, regardless of rank, before courts that meet international fair trial standards has begun starting from the raise of the Arab Spring in 2011.1 In principle, national authorities have the primary responsibility to bring those responsible for international crimes to account. In Syria, it is clear that this likely will not happen in the short-term given the demonstrated absence of political will to permit the independent and impartial prosecution of the serious crimes committed this past six year. There is a substantial body of international law governing the commission of war crimes in Syria. Legal guideposts include the Geneva Conventions and their two Additional Protocols, the Rome Statute of the International Criminal Court (ICC Statute), a suite of treaties dedicated to the use and prohibition of certain weapons, and the International Committee of the Red Cross's (ICRC) monumental customary international law (CIL) study. Although the various IHL treaties are well-established and well-subscribed to by States, they contain only rudimentary provisions on war crimes when committed in non-international armed conflicts (NIACs), which is presumptively but not definitively how the conflicts in Syria would be characterized. Likewise, national penal codes and the ICC Statute do not codify all potential war crimes, particularly when it comes to acts of violence committed in NIACs. Because of gaps in the ICC Statute, the ICC Prosecutor would not be able to prosecute as war crimes many of the acts of violence that are so salient in the Syrian conflict, even if a referral to the ICC is forthcoming. This leads the case into another twist, whether any international involvement could bring justice toward Syrian peoples. Is international justice is feasible? And if it would bring justice toward Syrian, how should the process be? Herein lays the paradox, at some point most scholars seem belief on potential logic of an Ad-Hoc tribunals and hybrid tribunals to be imposed on this situation. For that reasons, I would like to argue the limit of this Ad-hoc tribunals in pursuing alleged war crimes in Syria.

Victims’ rights, victim collectives and utopic disruption at the Extraordinary Chambers in the Courts of Cambodia

This article examines victim participation at Cambodia's hybrid tribunal, the Extraordinary Chambers in the Courts of Cambodia (ECCC). The tribunal — which attempts to bring former Khmer Rouge to justice for crimes committed between 1975 and 1979 — has invited significant participation by ‘victims’ and has provoked new public debate about the past, ongoing suffering and reparation. The participation of collectives of victims, and the collective nature of their participation, are here considered as interventions in the immanent utopic processes of the ECCC. These interventions produce new claims for reparation, claims that exceed extant human rights discourses in Cambodia and confront dominant economic and socio-political conditions.