Download positioning hybrid tribunals in international criminal justice

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POSITIONING HYBRID TRIBUNALS IN
INTERNATIONAL CRIMINAL JUSTICE
LINDSEY RAUB
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013
II. THE LIMITED SPHERE OF THE AD HOC TRIBUNALS
AND THE INTERNATIONAL CRIMINAL COURT . . . . . . . 1017
III. THE HYBRID TRIBUNALS . . . . . . . . . . . . . . . . . . . . . . . . . 1023
A. Kosovo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1026
B. East Timor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1029
C. The Extraordinary Chambers in the Courts of
Cambodia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1031
D. The Special Court for Sierra Leone . . . . . . . . . . . . . 1034
E. The Special Tribunal for Lebanon . . . . . . . . . . . . . . 1037
IV. A ROLE FOR HYBRID TRIBUNALS IN INTERNATIONAL
CRIMINAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1041
A. The Advantages of Hybrid Tribunals . . . . . . . . . . . 1041
B. Challenges Facing Hybrid Tribunals . . . . . . . . . . . . 1044
C. Hybrid Tribunals and the International Criminal
Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1046
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1052
“International criminal law deals with the darkest side of
humanity. [T]he magnitude of this task is such that there is no single
response to the multifarious aspects of international criminality.”1
I.
INTRODUCTION
The end of the Second World War marked the emergence of a new international norm: when individuals commit
atrocities so heinous as to offend the conscience of humankind, the international community may bring them to justice.
Until the establishment of the Nuremberg and Tokyo Military
Tribunals, those deemed responsible for war crimes had been
1. Antonio Cassese, The Role of Internationalized Courts and Tribunals in the
Fight Against International Criminality, in INTERNATIONALIZED CRIMINAL
COURTS: SIERRA LEONE, EAST TIMOR, KOSOVO, AND CAMBODIA 1, 13 (Cesare
Romano, Andre Nollkaemper & Jann K. Kleffner eds., 2004).
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tried under national law, generally in military justice systems.2
The Nuremburg trials confirmed that individuals had duties
under international, as well as national, law and that international law could reach beyond states and attach responsibility
to individuals for violations of these obligations.3 The London
Accord, signed in 1945 by the United States, the United Kingdom, the French Republic, and the Soviet Union, established a
judicial system to try “war criminals whose offenses have no
particular geographical location, whether they be accused individually or in their capacity as members of organizations or
groups or in both capacities.”4 These trials marked “the first
time the leaders of a major state were to be arraigned by the
international community for conspiring to perpetrate, or causing to be perpetrated, a whole series of crimes against peace
and against humanity.”5 Though the Nuremberg tribunal was
a great accomplishment in its own right, such a tribunal today
would likely fail to pass muster, encountering cries of victors’
justice and charges that it violated nullum crimen sine lege, or
the principle that conduct must have been explicitly proscribed at the time of such conduct for society to punish an
alleged offender.6
Since Nuremberg, the United Nations (U.N.) has engaged in various experiments in developing mechanisms to enforce what has come to be known as international criminal
law. The resulting institutions are the products of varying political compromises and have been given very different man2. See Andrew Clapham, Issues of Complexity, Complicity, and Complementarity: From the Nuremberg Trials to the Dawn of the New International Criminal Court,
in FROM NUREMBERG TO THE HAGUE: THE FUTURE OF INTERNATIONAL CRIMINAL JUSTICE 30, 31 (Philippe Sands ed., 2003).
3. Id. at 31-33.
4. The Agreement for the Prosecution and Punishment for Major War
Criminals of the European Axis, Charter of the International Military Tribunal art.1, Aug. 8, 1945, 8 U.N.T.S. 279.
5. Richard Overy, The Nuremberg Trials: International Law in the Making,
in FROM NUREMBERG TO THE HAGUE: THE FUTURE OF INTERNATIONAL CRIMINAL JUSTICE 1, 2 (Philippe Sands ed., 2003).
6. See JACKSON NYAMUYA MAOGOTO, WAR CRIMES AND REALPOLITIK: INTERNATIONAL JUSTICE FROM WORLD WAR I TO THE 21ST CENTURY 99 (2004); see
also Overy, supra note 5, at 21-22 (“The idea of retrospective justice . . . that
the Tribunal would be both legislator and judge, creating crimes in order to
punish them, was something that Western legal opinion also found difficult
to accept.”).
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dates.7 The early 1990s saw some of the worst atrocities since
the Holocaust.8 These atrocities prompted the U.N. to create
the International Criminal Tribunal for the former Yugoslavia
(ICTY) in 1993 and, less than one year later, the International
Criminal Tribunal for Rwanda (ICTR).9 Despite the considerable achievements of these institutions, they were not designed
to provide a definitive model for the implementation of international criminal justice.10 In 2002 the need for these ad hoc
international institutions was diminished by the creation of the
International Criminal Court (ICC),11 a permanent institution
established with the aim of putting an end to impunity for the
perpetrators of the most serious crimes of concern to the international community.12 Prior to the creation of the ICC, as
the Security Council and the international community became
aware of various features of the ad hoc tribunals that militated
against using them as a model for future ad hoc international
criminal courts, the U.N. began to search for alternatives.13
This led to the birth of a new form of international criminal
justice institution—the hybrid tribunal.14
7. James Cockayne, The Fraying Shoestring: Rethinking Hybrid War Crimes
Tribunals, 28 FORDHAM INT’L L.J. 616, 618 (2005).
8. Reports depicting heinous crimes—including thousands of civilians
being killed and wounded, tortured and sexually abused in detention camps,
and hundreds of thousands being expelled from their homes—prompted
the Security Council to act, leading to the creation of the ICTY in May 1993.
Estimates indicate that around 250,000 people died and more than one million were displaced in the regions of the former Yugoslavia, while approximately half a million Tutsis were slaughtered by members of the Hutu tribe
in Rwanda in 1994. See International Criminal Tribunal for the Former Yugoslavia, About the ICTY, http://www.icty.org/sections/AbouttheICTY (last
visited May 18, 2009); see also the Project on International Courts and Tribunals, ICTR, http://www.pict-pcti.org/courts/ICTR.html (last visited May 18,
2009).
9. See United Nations Documentation: Research Guide, ICTY and ICTR,
http://www.un.org/Depts/dhl/resguide/specil.htm#ity (last visited May 18,
2009).
10. David Cohen, “Hybrid” Justice in East Timor, Sierra Leone, and Cambodia:
“Lessons Learned” and Prospects for the Future, 43 STAN. J. INT’L L. 1, 1 (2007).
11. See id.
12. Rome Statute of the International Criminal Court arts. 1, 5(1) and
pmbl., U.N. Doc. A/CONF.183/9 (July 17, 1998) [hereinafter Rome Statute].
13. See Cohen, supra note 10, at 1.
14. Id. These types of tribunals are also often referred to as “internationalized” or “mixed” tribunals. It is the international aspect of these mecha-
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These tribunals are referred to as “hybrid” or “internationalized” because both the institutional apparatus and the
applicable law consist of a blend of the international and the
domestic, resulting in a mixed form of justice.15 Such tribunals employ the efforts of both the international community
and the state in which the alleged crimes occurred.16 Over the
past two decades several hybrid tribunals have been created,
including the Regulation 64 Panels in Kosovo; the Special
Panels for Serious Crimes (SPSC) in Dili, East Timor; the Extraordinary Chambers in the Courts of Cambodia (ECCC) in
Phnom Penh; the Special Court for Sierra Leone (SCSL) in
Freetown; and most recently the Special Tribunal for Lebanon
(STL) in The Hague, The Netherlands.
This Note argues that hybrid tribunals have a crucial role
to play in international criminal justice. Hybrid tribunals present unique advantages in light of the expiring mandates of
the ad hoc tribunals and the establishment of the ICC. An
assessment of the structures of existing and pre-existing hybrid
tribunals demonstrates that, in some circumstances, hybrid
tribunals offer a model of transitional justice superior to that
provided by purely national or international courts. Therefore, the establishment of such tribunals should be preserved
as an option for implementing international criminal justice.
Part II will discuss the criticisms lodged against the ad hoc
criminal tribunals. Part III will then examine hybrid tribunals
noted above and consider their utility in responding to these
criticisms. Finally, Part IV will consider the role of the hybrid
tribunal in international criminal law, arguing that these tribunals remain essential in the fight against impunity and provide
certain advantages, particularly to the victim population, in adnisms of justice that make them noteworthy. At times, such as in the case of
the Special Court for Sierra Leone, it may be more appropriate to refer to
the nationalization of an international court rather than the internationalization of a domestic court. See Cesare Romano, Andre Nollkaemper, &
Jann K. Kleffner, Preface to INTERNATIONALIZED CRIMINAL COURTS: SIERRA LEONE, EAST TIMOR, KOSOVO, AND CAMBODIA (Cesare Romano, Andre
Nollkaemper & Jann K. Kleffner eds., 2004). For the purposes of this Note,
such institutions will be referred to as “hybrid tribunals” for the sake of uniformity.
15. Laura A. Dickinson, Note, The Promise of Hybrid Courts, 97 AM. J. INT’L
L. 295, 295 (2003).
16. Cohen, supra note 10, at 2.
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ministering justice that the ICC and ad hoc tribunals are less
well-situated to provide.
II. THE LIMITED SPHERE OF THE AD HOC TRIBUNALS
THE INTERNATIONAL CRIMINAL COURT
AND
While proponents of international prosecutions emphasize the need to promote and maintain international peace—
both goals articulated by the ICTY, ICTR, and ICC—the trials
conducted by such international institutions face certain obstacles. Hybrid tribunals present unique options in response to
the criticisms lodged against purely international trials, and
their flexibility allows them to incorporate the strengths of
preceding international criminal judicial institutions while adjusting to the specific needs of a particular situation, including, significantly, the needs of the victim population. The
sphere of international criminal justice established by the ad
hoc tribunals, and now dominated by the International Criminal Court, is exceedingly important in the fight against impunity and the development of international criminal law. However, this sphere is limited. Hybrid tribunals offer an alternative approach to international criminal justice that, when
coupled with the operation of a permanent international criminal court, expands the range of options and allows for greater
flexibility in the pursuit of international criminal justice.
Advocates of international, as opposed to domestic, trials
point to the opportunities presented by an international trial
to both fulfill victims’ expectations for the highest forms of
justice and uphold the international rule of law.17 They also
argue that international prosecutions are preferable to national prosecutions for several reasons. International prosecutions are less destabilizing to fragile governments, and less
likely to capitulate to short-term national political objectives.
They are able to draw on the expertise of international judges
and lawyers who are better qualified to contribute to the progressive development of international law and to conduct impartial proceedings than national governments emerging from
recent conflict. Finally, they are more likely to be respected by
national authorities, possess a greater ability to investigate
17. José Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24
YALE J. INT’L L. 365, 375 (1999).
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crimes with ramifications in multiple states, and can render
more uniform justice.18
The creation of the ICTY and ICTR reflects the view that
it is both politically desirable and legally justified to conduct
such trials at the international level in light of the interstate
interests implicated by the nature and extent of the atrocities
at issue.19 Such interstate interests, including the flow of refugees across international boundaries, the failure of the national government to prosecute those responsible, and the fact
that more than one state was involved in at least some of the
crimes committed, led the U.N. Security Council to determine
that the crimes committed in both regions constituted a credible threat to international peace as anticipated in Chapter VII
of the U.N. Charter.20 The creation of the ICC offers further
proof of the symbolic importance of international trials by
highlighting the desire of the international community to create a permanent adjudicatory body to address the interstate
interests discussed above and to prosecute crimes of concern
to all humankind.
In order to promote the above-mentioned interstate interests and ensure the tribunals had the opportunity to prosecute
those most responsible for atrocities concerned, both the ICTY
and ICTR were given primacy over national courts.21 Under
both statutes, primacy authorizes that, “at any stage of the procedure the international tribunal may order national courts to
defer to its competence and release a suspect to its custody for
trial.”22 The inclusion of primacy was a key source of contention amongst critics of the tribunals. As noted by José Alvarez
18. See id. (citing Antonio Cassese, On the Current Trends Towards Criminal
Prosecution and Punishment of Breaches of International Humanitarian Law, 9
EUR. J. INT’L L. 2, 9-10 (1998)).
19. Id. at 376.
20. See id. at 376 n.54 (citing The Secretary-General, Report of the SecretaryGeneral Pursuant to Paragraph 2 of Security Council Resolution 808, ¶ 6, submitted
to the Security Council, U.N. Doc. S/25704 (May 3, 1993) (restating the Security Council’s grave concern at violations of international humanitarian law
occurring in the former Yugoslavia); S.C. Res. 955, U.N. Doc. S/RES/955
(Nov. 8, 1994) (establishing the tribunal for Rwanda)).
21. See id. at 376.
22. Id. at 386 (citing Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 9(2), available at http://www.un.org/
icty/legaldoc-e/basic/statut/statute-feb08-e.pdf [hereinafter ICTY Statute];
Statute of the International Tribunal for Rwanda, art. 8(2), available at www.
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in his critique of the ICTR, “[o]n a day-to-day basis, more people rely on the protection and viability of their own local law
and institutions than on international law or the U.N.”23
Thus, by depriving the Rwandan government of the opportunity to try high-level perpetrators, the ICTR’s primacy “deprived the current government of legitimacy at a critical
time.”24
The drafters of the Rome Statute (hereinafter the Statute) sought to address these critiques by incorporating the
principle of complementarity as one of the foundations of the
ICC.25 Where national authorities can properly investigate
and prosecute alleged offenses, the ICC will cede jurisdiction
to national institutions, since they are the preferred avenues
for bringing offenders to justice.26 “Complementarity strives
to harmonize, wherever possible, multiple and competing
sources of jurisdiction over international crimes.”27 This harmonization, however, is not always possible and the principle
of complementarity was not intended to serve as a loophole by
which perpetrators might escape investigation and prosecution.28 Nor does complementarity definitively address the
problems of primacy. Indeed, the ICC has already been criticized for asserting its jurisdiction in Sudan.29 Nonetheless, the
international community appears to have learned from the
icls.de/dokumente/ictr_statute.pdf [hereinafter ICTR Statute]) (internal
citations omitted).
23. Id. at 403.
24. Id. at 402-03.
25. See Rome Statute, supra note 12, at pmbl., art. 1.
26. See Office of the Prosecutor of the International Criminal Court, Paper on Some Policy Issues Before the Office of the Prosecutor, at 2 (2003), available at
www.amicc.org/docs/OcampoPolicyPaper9_03.pdf (emphasizing the complementary nature of the Court).
27. Ruth B. Philips, The International Criminal Court Statute: Jurisdiction and
Admissibility, 10 CRIM. L.F. 61, 63 (1999).
28. For example, the ICC’s deference to national court systems does not
extend where the state which has jurisdiction over the alleged crimes is unable or unwilling to genuinely carry out an investigation or prosecution. In
such a situation the ICC could assert jurisdiction in order to ensure the investigation and/or prosecution of the alleged offenders. See Rome Statute,
supra note 12, at art. 17(1)(A).
29. In the case of Darfur, a major criticism of the ICC’s exercise of jurisdiction was the fact that the Sudanese judiciary had in fact “gone a long way”
in holding trials and was itself capable of ensuring accountability. See Press
Release, Security Council, Security Council Refers Situation in Darfur, Su-
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past, recognizing the importance of allowing countries to prosecute their own nationals where the local judiciary is both willing and able. The ability of hybrid tribunals to effectuate national involvement in the judicial process emphasizes the continuing need for such institutions in the sphere of
international criminal law.
In addition to the criticisms of primacy, several other factors demonstrate why international tribunals alone are insufficient to prosecute suspects of international crimes and bring
about justice for those affected by such crimes. In post-conflict
societies, there is often a need to strengthen local courts and
institutions. Removing trials to the international level deflects
resources and attention from this goal.30 International tribunals have also been criticized for the duration of trials.31 Delay
not only impedes the right of the accused to a speedy trial, but
also means that trials may occur decades after the atrocities
have ended.32 Consider the trial of Slobodan Milosevic, indicted by the ICTY in 1999 and charged with genocide, crimes
against humanity and war crimes.33 Milosevic died in his cell
in The Hague only months before a verdict was to be rendered
in his trial of more than four years.34 While an extreme example, the Milosevic trial nonetheless demonstrates the pitfalls of
the lengthy international process, as some victims undoubtedly
view the failure of the ICTY to render a verdict in the Milosevic
trial as justice denied.35
International tribunals lack accountability and perceived
legitimacy in relation to the victim population since they often
respond most readily to their patrons—the international community—and only incidentally to victims.36 International
dan to Prosecutor of International Criminal Court, U.N. Doc. SC/8351
(Mar. 31, 2005).
30. See Dickinson, supra note 15, at 303-04.
31. See Cohen, supra note 10, at 4.
32. See id.
33. See Milosevic Dies before Trial Verdict, REUTERS, Mar. 12, 2006, available
at http://www.globalpolicy.org/intljustice/tribunals/yugo/2006/0312dies.
htm.
34. See id.
35. See Death of Milosevic Called Justice Denied, INT’L HERALD TRIBUNE, Mar.
12, 2006, available at http://www.iht.com/articles/2006/03/12/news/react.
php.
36. See Alvarez, supra note 17, at 410 (citing Catharine A. MacKinnon,
Remedies for War Crimes at the National Level, J. INT’L INST., Fall 1988, at 1); see
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tribunals also risk a lack of national ownership in the process,
since they do not necessarily involve the local population.37
Citizens of the affected country should feel some participatory
connection to the trials if those trials are to further the oftdeclared goals of international criminal justice—promoting
reconciliation, developing a culture of accountability, and creating respect for judicial institutions in a post-conflict society.38 These goals require outreach, education, and other capacity-building efforts at the local and national level in order
to ensure both that the local population is aware of the progress of these judicial institutions and that the tribunal contributes to the rebuilding of the national infrastructure, in particular the judiciary.39 Without such programs it becomes “too
easy to dismiss the process as simply imposed by foreign countries and organizations who have misunderstood what really
happened,”40 and the resulting prosecutions may be seen by
the affected population as lacking both legitimacy and accountability. Moreover, national trials are likely to reach further back into the country’s past to provide a fuller account of
the scope of the conflict and to avoid punishing only those
deemed most accountable.41 For example, in Rwanda, José Alvarez argues that national trials might have been more likely to
provide a full account of the atrocities and an accurate account of the extent of complicity than trials of a select few
high-level perpetrators at the ICTR, and thus could create a
more illustrative account of the genocide.42
also Dickinson, supra note 15, at 301. According to Alvarez, “[t]he signal the
ICTR is now sending to perpetrators everywhere is not that international
norms will be enforced against all those who violate them but that those
most responsible for the worst offenses will not be accountable directly to
the communities they butchered. Instead, they will receive relatively lenient
treatment, have their lives spared, and face, at most, some years in confinement under conditions far better than they could have ever anticipated back
home.” Alvarez, supra note 17, at 418. The term “legitimacy” is used
throughout this Note to refer to the legitimacy of tribunals as perceived by
the various populations, both domestic and international, observing the trials and procedures of the international judicial body at issue. Cf. Dickinson,
supra note 15, at 301.
37. See Cohen, supra note 10, at 5.
38. See id. at 5-6.
39. See id. at 6.
40. Id. at 6.
41. See Alvarez, supra note 17, at 400-01.
42. See id. at 401.
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Local trials also present additional advantages that international tribunals are not in a position to provide. To many
survivors of atrocities, “it matters a great deal whether an alleged perpetrator . . . is paraded before the local press, judged
in a local courtroom in a language that [the local population]
can understand, subjected to local procedures, and given a
sentence that accords with local sentiments, including perhaps
the death penalty,”43 which tribunals affiliated with the U.N.
have not applied.44 There is a perception of hypocrisy in the
U.N.’s refusal to apply the death penalty to those most responsible for the atrocities when local courts may impose such a
penalty for those bearing less culpability.45 For instance, despite the Rwandan government’s express objection, the Security Council insisted upon the unavailability of the death penalty to the judges of the ICTR.46 In addition, the location of
international tribunals far from the situs of the conflict makes
it difficult for victims and ordinary citizens to attend trials as
well as for the tribunals to conduct outreach to the affected
community, a measure that would ensure the trial is meaningful to those on whose behalf justice is being undertaken.47 A
tribunal’s remote location may also create difficulties with respect to the production of witnesses and the ability to conduct
investigations.48
Finally, both the ICTY and ICTR are massive judicial institutions with considerable budgets, staffs, and dockets filled
with complex cases that require a significant period of time to
try.49 In view of this, the relatively small number of trials completed by the tribunals appears unsatisfactory. “The incredible
costs and operational challenges of the ad hoc tribunals have
tried the patience of many States. Where ‘never again’ was
once the catch-cry of anti-impunity activists, now it has become
43. Id. at 403-04.
44. See Human Rights Watch, U.K.: Letter on United Nations Involvement
with Iraqi Special Tribunal, Jan. 14, 2004, available at http://www.hrw.org/en/
news/2004/01/14/uk-letter-united-nations-involvement-iraqi-special-tribunal; see also Sylvia de Bertodano, Were There More Acceptable Alternatives to the
Iraqi High Tribunal?, 5 J. INT’L CRIM. JUST. 294, 297 (2007).
45. See Alvarez, supra note 17, at 407.
46. See id.
47. See Cohen, supra note 10, at 5.
48. See id. at 6.
49. See id. at 3-4.
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the under-the-breath muttering of Permanent Representatives
on their way to approving another tribunal budget at U.N.
Headquarters.”50 The 2009-2010 budget for the ICTY is
$347,566,900 or approximately $173.7 million per year.51 The
2008-2009 budget for the ICTR was $267,356,200 or approximately $133.7 million per year.52 Despite these sizeable budgets, both tribunals have been able to try only a handful of perpetrators and both have continued to function beyond their
2008 mandates,53 requiring additional assessed contributions
from the U.N. budget.54
III.
THE HYBRID TRIBUNALS
Hybrid tribunals are most often established in post-conflict situations where no international tribunal exists, as in East
Timor, Cambodia, Sierra Leone, and Lebanon; or where an
international tribunal exists but cannot cope with the number
of alleged perpetrators, as in Kosovo.55 A tribunal may be classified as hybrid or internationalized based on a number of criteria: legal basis, function/mandate, location within or without
the domestic court system, subject-matter-jurisdiction, oversight, and composition/personnel.56 No two hybrid tribunals
are identical. The aim of these tribunals is to “marry the best
of two worlds—the expertise of the international community
with the legitimacy of local actors.”57 To reduce costs and help
50. Cockayne, supra note 7, at 616-17.
51. See ICTY Weekly Press Briefing, Jan. 16, 2008, http://www.un.org/
icty/briefing/2008/pb080116.htm.
52. See Rwanda: UN Approves 267 Million Dollars ICTR Budget, HIRONDELLE
NEWS AGENCY, Jan. 17, 2008, available at http://allafrica.com/stories/200801
220118.html.
53. See ICTY/Mandate—The Tribunal for the Former Yugoslavia Also Has to
Envisage Its Closing, HIRONDELLE NEWS AGENCY, June 15, 2007, available at
http://www.hirondellenews.com/content/view/560/273/; George Kagame,
Rwanda: UN Security Council Extends ICTR Mandate, HIRONDELLE NEWS
AGENCY, July 21, 2008, available at http://allafrica.com/stories/2008072109
37.html.
54. See Thordis Ingadottir, The Financing of Internationalized Courts and
Tribunals, in INTERNATIONALIZED CRIMINAL COURTS: SIERRA LEONE, EAST TIMOR, KOSOVO, AND CAMBODIA, supra note 1, at 271-73.
55. Dickinson, supra note 15, at 295.
56. John Cerone and Clive Baldwin, Explaining and Evaluating the UNMIK
Court System, in INTERNATIONALIZED CRIMINAL COURTS: SIERRA LEONE, EAST
TIMOR, KOSOVO, AND CAMBODIA, supra note 1, at 41 n.2.
57. Cockayne, supra note 7, at 619.
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improve efficiency, the framers of hybrid tribunals have imposed time limits on the work of the courts in order to avoid
the massive costs and delay that plagued the ICTY and ICTR.58
One of the most significant departures of hybrid institutions
from both the ad hoc tribunals and the ICC has been the manner in which they are funded. Both the ICTY and ICTR are
funded by the U.N. in accordance with a predefined scale of
assessment: half of their expenses are appropriated by U.N.
Member States and the other half on the basis of the peacekeeping budget scale.59 The ICC, on the other hand, was established outside the sphere of the U.N. and is funded by assessed contributions from State Parties to the Rome Statute.
Funding may also be provided via voluntary contributions or
by the U.N. upon approval by the General Assembly.60 Hybrid
tribunals, on the other hand, have been funded in a variety of
ways. The Kosovo Regulation 64 Panels and the SPSC were
funded through their respective U.N. mission budgets and, in
the case of Kosovo, the Kosovo Consolidated Budget. The Extraordinary Chambers, Special Court for Sierra Leone, and
Special Tribunal for Lebanon were funded by contributions
from both the national government and the international
community, either voluntarily or from the U.N. budget.61
That hybrid tribunals are less expensive to operate than
international courts and tribunals has proved to be both an
advantage and disadvantage. The most expensive expenditures for the ICTY and ICTR are translation costs and defense
costs, each constituting 13% of the tribunals’ budgets, and it is
these services that the hybrid tribunals need but are lacking.62
In addition, international judges of hybrid tribunals are paid
less than judges serving on international courts and tribunals.
The resulting financial instability and short-term contracts
contribute to difficulties in recruiting qualified judges.63
Funding is one of the major difficulties facing the creation and
operation of a hybrid tribunal. However, such an obstacle is
not insurmountable and does not preclude the creation of
58. See Cohen, supra note 10, at 4.
59. See Ingadottir, supra note 54, at 271-73.
60. Id. at 273.
61. See discussion on the specific funding methods for each hybrid tribunal, infra Parts III.A-E.
62. See Ingadottir, supra note 54, at 285.
63. Id. at 286.
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these institutions. International and hybrid tribunals do not
operate in a vacuum.64 While the costs of these tribunals may
seem extraordinary, the international community has spent an
estimated $2.8 billion to implement peace in Sierra Leone.65
In context, then, the estimated $89 million budget of the Special Court seems less extravagant.66
The success of these tribunals (and perhaps all international criminal bodies) depends on the support of three
groups of stakeholders: the victims and populations affected
by the alleged crimes, the international community, and the
defendants themselves.67 As illustrated by the various critiques
of the ICTY and ICTR, these stakeholders often have divergent
and even competing interests. For example, the interest of the
accused in having a speedy trial may not accord with the international interest in ensuring sufficient time to develop an institution capable of both trying the accused and promoting international criminal norms and justice.68
The rest of this section examines several hybrid tribunals:
the Kosovo Regulation 64 Panels, the Special Panels of the Dili
District Court, the Extraordinary Chambers of the Courts of
Cambodia, the Special Court for Sierra Leone, and the Special
Tribunal for Lebanon. It then assesses these tribunals, arguing that the creation of the International Criminal Court has
not obviated the need for hybrid tribunals in implementing
international criminal justice, and that, in certain circumstances, the use of a hybrid tribunal may be a more appropri64. See id. at 288.
65. See United Nations Mission in Sierra Leone–Facts and Figures, available at http://www.un.org/Depts/dpko/missions/unamsil/facts.html. The
United Nations Mission in Sierra Leone (UNAMSIL) was established in 1999
to assist the Sierra Leonean government in implementing the Lome Peace
Accord negotiated between the government and the rebels in May 1998. See
United Nations Mission in Sierra Leone–UNAMSIL–Background, available at
http://www.un.org/Depts/dpko/missions/unamsil/background.html.
66. See Chatham House, The Special Court for Sierra Leone and How It
Will End: A Summary of the Chatham House International Law Discussion
Group Meeting Held on July 9, 2007, available at http://www.chathamhouse.
org.uk/files/9574_il090707.pdf (stating that the official budget is used to
support court-paid staff in each district, an extensive NGO network, and various radio and video programs aimed at disseminating information).
67. See Cockayne, supra note 7, at 621.
68. See Cohen, supra note 10, at 4-5.
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ate approach to accountability than the assertion of ICC jurisdiction.69
A. Kosovo
In June 1999, six years after the creation of the ICTY, the
United Nations Interim Administration Mission in Kosovo
(UNMIK) recognized that the tribunal only had the resources
to try those most responsible for the atrocities that had taken
place in the former Yugoslavia. As such, UNMIK was left to
arrange for the investigation and prosecution of those who
had committed crimes against humanity, war crimes, and
other serious crimes during the Bosnian civil war that were beyond the ICTY’s jurisdiction.70 The local judiciary lacked both
the capacity and independence to conduct trials on its own.71
Much of the local infrastructure—including court buildings,
law libraries, and equipment—had been destroyed during the
war. In addition, local lawyers and judges were scarce or
lacked experience, as most Serbian judges and lawyers had
fled the country while Albanians had been barred from the
judiciary for years.72 In the midst of this inadequate infrastructure, detainees awaited trial in crowded prisons, and frustration from delays in the judicial process led to ethnic violence.73
To address these mounting crises of accountability and
justice, UNMIK passed several regulations permitting foreign
judges to sit alongside domestic judges on existing Kosovar
courts and allowing foreign lawyers to partner with domestic
lawyers to prosecute and defend the cases.74 Unlike the Spe69. The following discussion of the various internationalized tribunals is
not intended to be all-encompassing but rather to give a brief description of
the circumstances prompting the establishment of each tribunal and of the
structure and activity of each tribunal.
70. See Dickinson, supra note 15, at 296-97.
71. Id. at 297.
72. See id.
73. See id.
74. See id.; see, e.g., UNMIK/REG/2000/34 (May 27, 2000) (amending UNMIK/REG/2000/6 (Feb. 15, 2000)); UNMIK/REG/2000/64 (Dec. 15,
2000). The authority to pass such regulations stemmed from the U.N. Administration’s comprehensive mandate for humanitarian, governance, economic reconstruction, and sustainable development. See S/RES/1244 (June
10, 1999); see also Daphna Shraga, The Second Generation UN-Based Tribunals: A
Diversity of Mixed Jurisdictions, in INTERNATIONALIZED CRIMINAL COURTS: SIERRA
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cial Court for Sierra Leone and the Special Tribunal for Lebanon, which are treaty-based, and the Extraordinary Chambers
in Cambodia, which was created on the basis of domestic legislation, the Kosovo court system derived its authority from
these UNMIK regulations.75 In keeping with the hybrid nature of these institutions, the substantive law applied by the
courts was a blend of international and domestic,76 with local
law applying only insofar as it did not conflict with international human rights norms.77 The majority of the law applicable in the Kosovo courts was derived from pre-existing Yugoslav domestic legislation. Such legislation served as the vehicle
through which international criminal law was to be applied,
whereas the court’s authority to apply international human
rights law stemmed from the UNMIK Regulations.78 Under
UNMIK Regulation 2000/64, the Special Representative of the
Secretary-General (SRSG) had the authority, upon the request
of a prosecutor, an accused, or defense counsel, to appoint an
international prosecutor, judge, or a panel of three judges, at
least two of whom were international, resulting in the creation
of the so-called Regulation 64 Panels.79 International judges
and prosecutors were paid by the U.N. under its professional
salary scale,80 while the financing of the international panels
LEONE, EAST TIMOR, KOSOVO, AND CAMBODIA 15, 32 (Cesare Romano, Andre
Nollkaemper, & Jann K. Kleffner eds., 2004).
75. See Cerone & Baldwin, supra note 56, at 41; Nidal Nabil Jurdi, The
Subject-Matter Jurisdiction of the Special Tribunal for Lebanon, 5 J. OF INT’L CRIM.
JUST. 1125, 1126 (2007).
76. The local law applied was that in force in Kosovo prior to March 22,
1989. See Dickinson, supra note 15, at 297.
77. See id. This application of a blend of international and domestic law
differs from the competence of the international tribunals and international
criminal court, which are authorized to prosecute persons responsible for
violations of international humanitarian law, grave breaches of the Geneva
Conventions, violations of the laws or customs of war, genocide, crimes
against humanity, and in the case of the ICC, the crime of aggression once a
definition of the crime has been adopted. See ICTY Statute, supra note 22, at
arts. 1-5; ICTR Statute, supra note 22, at arts. 1-4; Rome Statute, supra note
12, at arts. 5-8.
78. See Cerone & Baldwin, supra note 56, at 44; see, e.g., UNMIK/REG/
1999/1 (July 25, 1999), UNMIK/REG/1999/23 (Nov. 15, 1999), and UNMIK/REG/1999/24 (Dec. 12, 1999).
79. Shraga, supra note 74, at 34.
80. TOM PERRIELLO & MARIEKE WIERDA, INTERNATIONAL CENTER FOR
TRANSITIONAL JUSTICE, LESSONS FROM THE DEPLOYMENT OF INTERNATIONAL
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and prosecution was divided between the UNMIK budget and
the Kosovo Consolidated Budget.81 As of June 2002 these
courts had held seventeen trials in war crimes cases,82 and in
October 2002 international judges and prosecutors were participating in ninety ongoing trials.83 By September 2005,
twenty-seven international judges and prosecutors were involved in sixty and forty-four cases, respectively.84
Measuring the Kosovo hybrid system’s success depends
upon the method of evaluation. Although both international
criminal law and international human rights law were applicable, the courts lacked the resources and capacity to fully apply
them. In addition, though the participation of international
judges created an air of impartiality, according to John Cerone
and Clive Baldwin these judges failed to increase the capacity
of the domestic court system and were unable to achieve sufficient independence from the UNMIK executive.85 Nevertheless, the Regulation 64 panels did succeed in trying several perpetrators who were unable to be tried by the ICTY due to its
mandate to prosecute only those most responsible for crimes
within the ICTY’s jurisdiction.86 The presence of international
judges imparted an air of credibility to these trials that would
have been missing without international involvement while at
least some Kosovar judges have benefited from exposure to
their international counterparts.87
JUDGES AND PROSECUTORS IN KOSOVO 16 (2006), available at http://www.ictj.
org/static/Prosecutions/Kosovo.study.pdf.
81. Id. at 28.
82. Dickinson, supra note 15, at 297.
83. MICHAEL E. HARTMANN, UNITED STATES INSTITUTE OF PEACE SPECIAL
REPORT NO. 112, INTERNATIONAL JUDGES AND PROSECUTORS IN KOSOVO: A
NEW MODEL FOR POST-CONFLICT PEACEKEEPING 12, (Oct. 2003), available at
http://se1.isn.ch/serviceengine/FileContent?serviceID=ISN&fileid=E43963
89-FC4C-C4F7-0AC3-B0F02D7157F7&lng=en.
84. Perriello & Wierda, supra note 80, at 27.
85. Cerone & Baldwin, supra note 56, at 57.
86. See S.C. Res. 1503, U.N. Doc. S/RES/1503 (Aug. 28, 2003) (reaffirming the ICTY’s strategy of “concentrating on the prosecution and trial of the
most senior leaders suspected of being most responsible for crimes within
the ICTY’s jurisdiction and transferring cases involving those who may not
bear this level of responsibility to competent national jurisdictions, as appropriate . . . .”) (emphasis added).
87. See PERRIELLO & WIERDA, supra note 80, at 32.
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B. East Timor
Following the toppling of the Suharto dictatorship in Indonesia in 1998, East Timor held a referendum on independence from the Indonesian Republic.88 Seventy-eight percent
of the Timorese population voted in favor of independence in
September 1999.89 However, deep political divides between
pro-independence and pro-Indonesian militias led to violence—culminating in the deaths of hundreds, the destruction of eighty percent of the buildings in the capital, Dili, and
the driving of more than one-third of the Timorese population
from their homes. Later that month the Security Council, at
the request of the Indonesian government, created a multinational force, the International Force East Timor (INTERFET)—ultimately succeeded by the United Nations Transitional Administration for East Timor (UNTAET)—to restore
order in East Timor.90
The UNTAET mandate called upon the transitional administration to create a judicial mechanism to achieve accountability in the region. In June 2000, UNTAET created the
Special Panels of the Dili District Court (SPSC) to try cases
related to the conflict.91 The statute of the SPSC vested the
panels with exclusive jurisdiction over serious crimes—i.e. genocide, crimes against humanity, war crimes, torture, sexual
violence, and murder—committed in East Timor between January 1 and October 25, 1999.92 Assistance from the international community was necessary because, as in Kosovo, much
of East Timor’s physical infrastructure had been destroyed
during the violence and the capacity of the judiciary had been
significantly weakened. In addition, there were few East
Timorese-trained lawyers, as most civil service posts had been
reserved for Indonesians during the Suharto regime.93
88. See Cohen, supra note 10, at 6.
89. Id. at 7.
90. Id. at 7-8 (citing S.C. Res. 1264, U.N. Doc. S/RES/1264 (Sept. 15,
1999) (establishing INTERFET); S.C. Res. 1272, U.N. Doc. S/RES/1272
(Oct. 25, 1999)). UNTAET administered East Timor until May 20, 2002,
when the country became independent and the U.N. Mission of Support
East Timor succeeded UNTAET. Id. at note 36.
91. See id. at 8.
92. See id. (citing U.N. Doc. UNTAET/REG/2000/15 (June 6, 2000) (establishing panels with exclusive jurisdiction over serious criminal offenses)).
93. Dickinson, supra note 15, at 298.
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UNTAET structured the SPSC to include two international judges and one Timorese judge and placed it within the
newly created domestic legal system of East Timor.94 Appeals
were to be heard by the Timorese Court of Appeal, which had
a structure similar to the District Court. The substantive law
applied was also a mix of national and international law, incorporating slightly modified provisions of the Rome Statute of
the ICC with respect to the definitions of genocide, crimes
against humanity, and other crimes, and with other international conventions, norms, and jurisprudence, as well as Indonesian law, governing all aspects not covered by the Rome Statute provisions.95 The Serious Crimes Unit of the prosecution
service under the Prosecutor General of East Timor was responsible for prosecution, but UNTAET created no corresponding unit for defense until September 2002, when clear
shortcomings in the provision of adequate defense led to the
creation of the Defense Lawyers Unit.96 From 2000 through
2005, the SPSC completed fifty-five trials involving eighty-seven
defendants. Eighty-four were convicted and three acquitted,
although one of those acquitted was ultimately convicted by
the Appeals Court.97 The Security Council’s decision to set
the closure date of the SPSC for May 20, 2005, cut short the
work of the Panels, resulting in 514 investigative files remaining open.98
From its inception, the SPSC faced a number of
problems. While the location of the Panels within the domestic legal system of East Timor should seemingly have contributed to local ownership of the process, the unclear division of
responsibility between the U.N. and the Timorese government
resulted in a lack of clear ownership and allowed both sides to
avoid responsibility.99 The SPSC suffered many operational
problems, including a lack of reliable electricity, security, and
support from the U.N. and the local government in securing
the arrest of high-level perpetrators, all of which seriously
hampered the work of the court.100 Confusion regarding own94.
95.
96.
97.
98.
99.
100.
Cohen, supra note 10, at 8.
See id.
See id. at 9.
See id.
See id.
See id.
Id. at 9-10.
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ership also led to conflicts regarding the appointment, recruitment, and management of personnel.101 At one point the
Court of Appeal did not function for twenty-one months because the U.N. and the Timorese government could not agree
on appointments. It heard no appeals during this entire period, generating serious concerns regarding due process.102
C. The Extraordinary Chambers in the Courts of Cambodia
The Khmer Rouge held power in Cambodia from 1975 to
1979, but its impact on Cambodian society has been long-lasting. Civil war gripped Cambodia from 1979 until 1998, when
the last remnants of the Khmer Rouge political and military
structures fell with the surrender of Nuon Chea—second in
command to Pol Pot—to the Cambodian government.103 During the regime’s brutal four-year rule, an estimated three million people died,104 or between 20 and 25 percent of the
Cambodian population at the time.105 The atrocities committed by the regime during this period included systematic and
widespread forced population movements to rural locations in
order to facilitate the creation of a communal agricultural society, forced labor, inhumane living conditions, and the extermination of certain groups considered to be enemies of the
revolution.106
In 1997 co-Prime Ministers Hun Sen and Prince
Norodom Ranariddh wrote to the U.N. requesting assistance
in establishing a tribunal to prosecute those most responsible
for the atrocities committed under the Khmer Rouge.107 The
Cambodian government opposed the creation of a purely international tribunal, and Hun Sen in particular felt strongly
101. Id. at 10.
102. Id. at 10-11.
103. See Key Leaders of the Khmer Rouge, AL JAZEERA, Nov. 20, 2007, available
at http://english.aljazeera.net/news/asia-pacific/2007/06/2008525184659
958577.html.
104. Extraordinary Chambers in the Courts of Cambodia, Introduction to
the ECCC, available at http://www.eccc.gov.kh/english/about_eccc.aspx
[hereinafter ECCC Introduction].
105. See Helen Horsington, The Cambodian Khmer Rouge Tribunal: The Promise of a Hybrid Tribunal, 5 MEL. J. INT’L L. 462, 465 (2004).
106. Id. at 464.
107. See id. at 467; see also ECCC Introduction, supra note 104; Shraga,
supra note 74, at 16.
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that a Cambodian-dominated tribunal was the most appropriate means of effectuating justice.108 The Security Council’s
unwillingness to act, in the context of threats that China would
veto any resolution establishing a tribunal,109 prompted the
General Assembly to take the lead.110 The Secretary-General,
upon the request of the General Assembly, recommended that
a tribunal be established under either Chapter VI or VII of the
U.N. Charter, but neither the Security Council nor the General Assembly acted upon this recommendation, leaving the
Secretary-General to work with the Cambodian government to
establish a hybrid tribunal.111 Domestic politics—most notably a coup staged by Hun Sen’s Cambodian People’s Party to
oust Prince Ranariddh’s Funcipec party from the coalition
government established by a U.N.-sponsored election in 1993,
as well as statements by former Khmer Rouge members that
prosecution would lead to further civil unrest—caused the negotiations between the U.N. and the Cambodian government
to stagnate for several years.112 Although several contentious
issues revolving around the distribution of national and international participation in the tribunal led to a stalemate in negotiations between the Secretary-General and the government,
the General Assembly finally approved a draft Agreement between the U.N. and the Cambodian government in 2003.113
Trials will be held in the Cambodian capital of Phnom
Penh beginning in 2009 (with the delay due in large part to
the protracted negotiations between the U.N. and the
Cambodian government).114 The Extraordinary Chambers
108. See Horsington, supra note 105, at 467.
109. Shraga, supra note 74, at 21.
110. Id. at 17.
111. See id. at 17.
112. Horsington, supra note 105, at 467-68.
113. See Shraga, supra note 74, at 17-19 (describing issues concerning the
nationality of judges, the appointment of the Prosecutor and the Registrar,
the validity of previously granted amnesty, and the status of the agreement
between the United Nations and the government concerning the Law on the
Establishment of the Extraordinary Chambers). The official text of the
Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea is available at http://
www.eccc.gov.kh/english/agreement_image.aspx.
114. Recognizing the importance of having the trials at the locus delicti in
order to ensure a process accessible to the local population, the Cambodian
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are intended to serve as a model for domestic court operations
within Cambodia.115 As with the hybrid institutions in Kosovo
and East Timor, the weakened state of the Cambodian judiciary from years of civil war and the international nature of the
crimes to be prosecuted led the government to believe that
international participation was necessary to ensure that the trials met international standards of justice.116
The Extraordinary Chambers consists of a Pre-Trial
Chamber composed of five judges, three of whom are
Cambodian, of whom one serves as President; a Trial Chamber
composed of five judges, three of whom are Cambodian with
one Cambodian judge serving as President; and the Supreme
Court Chamber, which both hears appeals and serves as the
chamber of final instance, and which is composed of seven
judges, four of whom are Cambodian with one serving as President.117 The ECCC has jurisdiction to prosecute senior leaders of the Khmer Rouge and those most responsible for crimes
and serious violations of Cambodian criminal law, international humanitarian and customary law, and international conventions recognized by Cambodia. The Extraordinary Chambers’ jurisdiction over such crimes is limited to those committed between April 17, 1975 and January 1979.118 The
Cambodian government will bear the costs of all Cambodian
staff, judges, and prosecutors, while the U.N. will bear the
costs of all foreign personnel. In addition, the Law on the Establishment of the Extraordinary Chambers passed by the
Cambodian government provides that defense counsel may receive fees for providing services and that the Extraordinary
Chambers may receive voluntary contributions from foreign
governments, NGO’s, international institutions, and other persons wishing to provide assistance.119
government insisted the Chambers be located in Cambodia. See ECCC Introduction, supra note 104.
115. See id.
116. See id.
117. See Law on the Establishment of the Extraordinary Chambers, with
inclusion of amendments as promulgated on 27 October 2004 (NS/RKM/
1004/006), art. 9, available at http://www.cambodia.gov.kh/krt/pdfs/KR%
20Law%20as%20amended%2027%20Oct%202004%20Eng.pdf [hereinafter
The Law].
118. See id. at art. 2. For a detailed list of all crimes over which the ECCC
has jurisdiction, see id. at arts. 3-8.
119. See id. at art. 44.
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On November 20, 2007, the Pre-Trial Chamber opened its
first public hearing, on the appeal by Kaing Guek Eav (alias
Duch) of his provisional detention. The appeal was dismissed
on December 3, 2007. The Pre-Trial Chamber proceeded to
hear appeals lodged by other charged persons in early 2008,120
and, on December 5, 2008, rendered its decision on the appeal of the co-investigating judges’ closing order against
Duch.121 The Trial Chamber is now seized of the matter, its
first case,122 proceedings in which began on February 17,
2009.123
D. The Special Court for Sierra Leone
The Special Court for Sierra Leone (SCSL) was created
on January 16, 2002, upon the request of the Sierra Leonean
government after the end of a brutal civil war. The war had
ravaged the country of Sierra Leone for ten years, resulting in
the murder, torture, rape, and mutilation of thousands of civilians.124 Following an appeal for international assistance from
the Sierra Leonean government, the Security Council requested that the Secretary-General negotiate an agreement
with the government to create an independent special court to
try those bearing the most responsibility for crimes against humanity, war crimes, and other serious violations of international humanitarian law.125 In January 2002, these negotiations resulted in the establishment of the Special Court.126
The commitment of the government of Sierra Leone to ensure
justice and its constructive attitude were the most important
factors prompting the establishment of the Court.127
120. Extraordinary Chambers in the Courts of Cambodia, FAQs: When
will the trials begin? What is the Court doing in the meantime? (Jan. 8,
2008), http://www.eccc.gov.kh/english/faq.view.aspx?doc_id=47.
121. Press Release, Extraordinary Chambers of the Courts of Cambodia
(Dec. 12, 2008), available at http://www.eccc.gov.kh/english/cabinet/press/
83/Press_Release_ENG_.pdf.
122. Id.
123. See Press Release, Extraordinary Chambers of the Courts of Cambodia, First ECCC Trial On Crimes of 1970s Khmer Rouge Regime Officially Opens
(Jan. 19, 2009), available at http://www.eccc.gov.kh/english/cabinet/press/
93/press_statement_hearing_EN.pdf.
124. Cohen, supra note 10, at 11.
125. Shraga, supra note 74, at 19.
126. See id. at 20.
127. See id. at 21.
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The SCSL is comprised of two Trial Chambers and an Appeals Chamber. Each Trial Chamber is composed of three
judges, with one judge nominated by the government of Sierra
Leone. In reality, however, there is only one Sierra Leonean
judge serving in the Trial Chamber and one in the Appeals
Chamber, as the judge nominated by the government need
not be a Sierra Leonean national.128 The prosecution team is
wholly international, whereas the defense team is comprised of
international and national personnel.129 The Court is managed by the Registrar, the staff of which is primarily Sierra Leonean.130
The SCSL is a treaty-based mechanism originally established with a three-year mandate “to try those who bear ‘the
greatest responsibility’ for serious violations of international
humanitarian law and Sierra Leonean law committed in Sierra
Leone after November 30, 1996.”131 Whereas in East Timor it
was never certain when the process would end and the decision to terminate bore no relation to the proceedings, in Sierra Leone the presence of an unambiguous mandate meant
that the Court would focus its resources on a relatively small
number of cases, removing from the Court the burden of deciding which perpetrators to prosecute. The mandate also led
the SCSL to formulate a plan for completion early on.132
However, the first trial did not begin until two years into the
Court’s operation, and in December 2007 the Security Council
extended the Court’s mandate to September 30, 2008.133 Due
to the length of the trial of former Liberian President Charles
Taylor, accused of providing financial and military assistance
to Sierra Leonean rebel factions in order to gain control over
Sierra Leone and access to the country’s diamonds, the Court
has already exceeded this extension,134 and the Court’s Man128. See Cohen, supra note 10, at 12.
129. See id.
130. See id.
131. Id. at 11-12.
132. See id. at 12-13.
133. See S.C. Res. 1793, ¶ 1, U.N. Doc. S/RES/1793 (Dec. 21, 2007).
134. See Mark A Drumbl, Charles Taylor and the Special Court for Sierra Leone,
10 ASIL INSIGHTS, issue 9 (April 12, 2006), http://www.asil.org/insights0604
12.cfm. Indicted by the Special Court in 2003 for crimes including facilitating, ordering, planning, and aiding and abetting the terrorizing of the civilian population, unlawful killings, conscription of child soldiers, and sexual
violence, Taylor was transferred to the Court in 2006. On January 30, 2009,
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agement Committee has approved a revised completion
budget that covers the period from July 1, 2008, to June 30,
2010, when the Court is expected to conclude its work.135
The fact that the SCSL was created through a formal
agreement eliminated many of the ownership issues that
plagued the SPSC.136 The U.N.-appointed administration runs
the Court without the participation of the national government, and the appointment of a Registrar as chief administrator has meant that one person bears responsibility for the
functioning of the Court and has the authority to make decisions regarding personnel, budget, and policy.137 In East Timor no such position existed, and it was not until three years
after the Panel’s creation that a Judge Coordinator was appointed; even this failed to remedy the Court’s lack of cohesive
operation, as no mandate was provided for the office.138 Another striking difference between the two tribunals is that
while the SPSC was funded through the U.N. mission’s budget
and was thus forced to compete with other U.N. priorities, the
SCSL is funded by the voluntary contributions of willing
states.139 A Management Committee created by the major donor countries oversees the budget and ensures that the Court
has the necessary resources to complete its work.140 The SCSL
is unique in that its subject matter jurisdiction covers two particular crimes specific to the circumstances in that country—
attacks against peace-keeping personnel and the conscripting
the final witness for the prosecution testified in Taylor’s trial. Taylor’s defense lawyers announced that if his request for an acquittal is denied, he will
ask the court for a six-month adjournment so he may travel to Africa to prepare his defense. If such a delay is granted, the defense would not begin to
present its case until July 2009. See Mike Corder, Amputee is Last Witness
Against Charles Taylor, ABC NEWS, Jan. 30, 2009, available at http://a.abcnews.
com/International/wireStory?id=6768689. On June 18, 2009, the SCSL ordered the Taylor defense team to open their case on July 13, 2009. See
Change of Start Date for Taylor Defense: July 13, 2009, http://www.charlestaylortrial.org/2009/06/20/change-of-start-date-for-taylor-defence-july-132009 (June 20, 2009).
135. Special Court for Sierra Leone, The Special Court Funding Mechanism, http://www.sc-sl.org/ (last visited May 30, 2009).
136. Cohen, supra note 10, at 13.
137. Id.
138. Id.
139. Id.
140. Id.
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or enlisting of child soldiers141 —thus demonstrating the flexibility of hybrid tribunals. Even more contentious was the fact
that child soldiers between the ages of fifteen and eighteen
were included in the jurisdiction of the Court,142 although
none have been prosecuted thus far.143
While the creators of the SCSL worked to address many of
the obstacles that plagued the previously established hybrid
tribunals, the Special Court is not without its problems. For
instance, the Management Committee has continuously pressured the Court regarding the duration of the trials, leading
judges to complain that such pressure threatens to impinge on
the independence of the Court.144 However, the structure of
the SCSL has greatly improved upon that of its predecessors.
First, the fact that the Court was established through a treaty
with a legitimate government bolsters the perceived legitimacy
of the institution both in the eyes of the international community and the domestic population.145 Such an arrangement
also allows the Court to operate within the country in which
the crimes occurred. Second, the Court combines the advantages of both international and domestic courts: international
staff members contribute international criminal law expertise,
while domestic staff members bring knowledge of local customs, laws, and culture.146 Finally, the budget is supported in
part by voluntary contributions and monitored by the Court’s
Management Committee, and is therefore better controlled
than tribunal budgets operating through the U.N.147
E. The Special Tribunal for Lebanon148
After more than thirty years of political assassinations in
Lebanon going unpunished, many hope that the operation of
the Special Tribunal for Lebanon (STL) will mark the end to
141. See Shraga, supra note 74, at 23.
142. See id. at 25.
143. See id. at 26.
144. See Cohen, supra note 10, at 14.
145. Bertodano, supra note 44, at 298.
146. Id.
147. Id.
148. Up-to-date information regarding the STL’s operation is available at
https://www.stl-tsl.org/action/home.
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that era of unaccountability.149 The Security Council established the STL in 2007 to try persons alleged to have assassinated or attempted to assassinate prominent Lebanese political and media figures beginning in 2004.150 The most prominent such crime was the assassination of former Prime
Minister Rafiq Hariri, which was widely blamed on Syria (although Syrian President Bashar al-Assad has consistently denied any Syrian involvement).151 The STL will be the first international body to prosecute the crime of “terrorism.” It is
also the first tribunal established to adjudicate allegations of a
crime targeted at a specific person.152 Whereas the hybrid
tribunals discussed above were established to try crimes resulting from particular conflicts during a defined time period, the
jurisdiction of the STL revolves around the assassination of
former Prime Minister Hariri.
The Tribunal sits in The Hague due to security concerns.
It is comprised of both Lebanese and international judges and
staff and will apply Lebanese law.153 The Tribunal’s statute
provides for a pre-trial judge, up to two Trial Chambers each
composed of three judges, and an Appeals Chamber composed of five judges, as well as separate prosecutorial and defense organs.154 A unique aspect of the STL is the ability of
States and other competent persons to nominate international
judicial candidates, a trend previously followed only in the
ECCC.155 With respect to the Lebanese judges, the Lebanese
149. See Kim Ghattas, Lebanon’s Groundbreaking Tribunal, BBC NEWS, Apr.
21, 2006, available at http://news.bbc.co.uk/2/hi/middle_east/4926536.stm.
150. See S.C. Res. 1757, U.N. Doc. S/RES/1757 (May 30, 2007), Attachment, Statute of the Special Tribunal for Lebanon, at art. 1 [hereinafter
Statute of the Special Tribunal for Lebanon]; see also INTERNATIONAL CENTER
FOR TRANSITIONAL JUSTICE, HANDBOOK ON THE SPECIAL TRIBUNAL FOR LEBANON 10 [hereinafter LEBANON HANDBOOK], available at http://www.ictj.org/
images/content/9/1/914.pdf.
151. See Ghattas, supra note 149.
152. See id.
153. See Statute of the Special Tribunal for Lebanon, supra note 150, at
art. 2.
154. See Statute of the Special Tribunal for Lebanon, supra note 150, at
arts. 7, 8; see also LEBANON HANDBOOK, supra note 150, at 19-24.
155. See S.C. Res. 1757, U.N. Doc. S/RES/1757 (May 30, 2007), Annex,
Agreement between the United Nations and the Lebanese Republic on the
establishment of a Special Tribunal for Lebanon, at art. 2(5)(b) [hereinafter
Agreement between the U.N. and Lebanon]; see also LEBANON HANDBOOK,
supra note 150, at 21.
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government submitted a list of twelve candidates to the U.N.
Office of Legal Affairs, from which a selection committee was
to choose four.156 While the appointment of the four Lebanese and seven international judges, as well as of the Prosecutor, Registrar, and Head of Defense for the STL has been completed, for security reasons the identity of the majority of these
personnel remains temporarily secret.157
Although the impetus behind the creation of the STL was
the request of the Lebanese government, the Security Council,
due to a political stalemate within Lebanon’s domestic legislative process, ultimately used its Chapter VII powers to pass a
resolution confirming the date the treaty establishing the tribunal would enter into force.158 The three-year mandate of
the tribunal may be extended upon review once it expires.159
The jurisdiction of the Tribunal is the narrowest of any hybrid
or ad hoc tribunal to date, as it may try only those allegedly
responsible for the attack on former Prime Minister Hariri and
other attacks connected with his assassination.160 In addition,
while the tribunals in Kosovo, East Timor, Cambodia, and Sierra Leone exercised jurisdiction over both international and
national crimes, the STL is the first international criminal tribunal to exercise jurisdiction solely over domestic crimes.161
156. See Agreement between the U.N. and Lebanon, supra note 155, at art.
5(a); see also LEBANON HANDBOOK, supra note 150, at 21.
157. Press Release, U.N. Dep’t of Pub. Info., News and Media Div., Press
Conference By Legal Counsel on Special Tribunal for Lebanon (Mar. 3,
2009), available at http://www.un.org/News/briefings/docs/2009/090303_
OBrien.doc.htm.
158. See LEBANON HANDBOOK, supra note 150, at 9; see also S.C. Res. 1664,
U.N. Doc. S/RES/1664 (March 29, 2006) (recalling letter by Lebanon’s
Prime Minister to the Secretary General requesting establishment of the
STL); Jurdi, supra note 75, at 1125-26 (describing passage of Resolution 1757
establishing the STL).
159. See Agreement between the U.N. and Lebanon, supra note 155, at art.
21.
160. See Statute of the Special Tribunal for Lebanon, supra note 150, at
art. 1; see also LEBANON HANDBOOK, supra note 150, at 10. The Statute further
details the factors to be taken into account in determining whether a particular attack bears a “connection” to the Hariri attack. These factors include
criminal intent or motive, purpose of the attacks, nature of the victims
targeted, patterns of the attacks, and the perpetrators. See Statute for the
Special Tribunal for Lebanon, supra note 150, at art. 1.
161. Such crimes include acts of terrorism, crimes and offenses against life
and personal integrity, illicit associations, and failure to report crimes and
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While not an official organ of the U.N., the Tribunal has a
U.N.-appointed registrar to oversee the day-to-day administration of the Tribunal.162 Fifty-one percent of the tribunal’s
budget will be funded by voluntary contributions from U.N.
member states and forty-nine percent by the government of
Lebanon.163 As with the SCSL, a Management Committee
composed of the tribunal’s primary donors oversees the nonjudicial aspects of the Tribunal’s work and gives policy direction.164 In order to avoid funding problems, the agreement
establishing the STL provides that the Security Council shall
explore “alternate means of financing” if necessary, which
could conceivably include a grant from the regular budget of
the U.N., as was made to the SCSL.165 The STL will require an
estimated $120 million during its first three years.166
According to a domestic Lebanese judge, “the creation of
the STL indicates the determination of the international community to recognize the extreme gravity of terrorist crimes,
and constitutes a prologue . . . to subjecting such crimes to
international criminal law.”167 In similarly optimistic fashion,
from a national perspective, the same judge expressed hope
that the participation of domestic judges in the STL will rejuvenate Lebanon’s legal system, which suffered significantly
during the Lebanese civil war.168 The tribunal began administrative work on March 1, 2009.169 Chief Prosecutor Daniel Bellemare of Canada has stated that he intends to move forward
offenses. See Statute for the Special Tribunal for Lebanon, supra note 150, at
art. 2; see also LEBANON HANDBOOK, supra note 150, at 10 (noting the STL will
“try only domestic crimes”); Jurdi, supra note 75, at 1126.
162. See Statute for the Special Tribunal for Lebanon, supra note 150, at
art. 12; see also LEBANON HANDBOOK, supra note 150, at 15.
163. See Agreement between the U.N. and Lebanon, supra note 155, at art.
5; see also LEBANON HANDBOOK, supra note 150, at 16.
164. See Agreement between the U.N. and Lebanon, supra note 155, at art.
6; see also LEBANON HANDBOOK, supra note 150, at 15-16.
165. See Agreement between the U.N. and Lebanon, supra note 155, at art.
5(2); see also LEBANON HANDBOOK, supra note 150, at 16.
166. This projected budget is exclusive of costs related to preparation of
the premises. See LEBANON HANDBOOK, supra note 150, at 16.
167. Choucri Sader, A Lebanese Perspective on the Special Tribunal for Lebanon,
5 J. OF INT’L CRIM. JUST. 1083, 1089 (2007).
168. See id.
169. See Marlise Simons, Tribunal Opens in Killing of Lebanese Prime Minister,
N.Y. TIMES, Mar. 1, 2009, available at http://www.nytimes.com/2009/03/01/
world/europe/01iht-lebanon.3.20508132.html.
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with indictments as soon as he gathers enough evidence
against a particular person or group of persons.170
Despite its innovations, the STL is not without its faults.
The Security Council’s use of its Chapter VII powers to bring
about the creation of the Special Tribunal, despite the lack of
domestic political agreement, raises questions of the propriety
of Security Council action. However, as the body entrusted
with maintaining international peace and security in any manner consistent with the U.N. Charter, and having already determined that the assassination of former Prime Minister
Hariri was a terrorist threat jeopardizing that peace and security, the Council was within its ambit in passing Resolution
1757.171 The creation of the tribunal has raised the additional
concern of increased instability in both Lebanon and Syria. In
fact, three days after the Security Council resolution came into
effect, anti-Syrian MP Walid Eido was assassinated by a bomb
in Beirut.172 Yet international tribunals are often created in
the midst of political instability and in the wake of conflict, so
the STL is no different in this regard. In considering the implications of such a tribunal, the political cost of not creating
such an institution must also be taken into account.173 In the
case of Lebanon, to give in to terrorist threats would only “allow them to materialize with impunity.”174
IV.
A ROLE
FOR
HYBRID TRIBUNALS
CRIMINAL LAW
IN
INTERNATIONAL
A. The Advantages of Hybrid Tribunals
As is clear from the above descriptions of the various hybrid tribunals, the means by which they are established and
the provisions governing their operation, structure, and jurisdiction differ significantly. While the creation of the existing
international ad hoc and hybrid tribunals has been driven by
170. See id.
171. Nadim Shehadi & Elizabeth Wilmshurst, The Special Tribunal for Lebanon: The UN on Trial?, CHATHAM HOUSE MIDDLE EAST/INTERNATIONAL LAW
BRIEFING PAPER, July 2007, at 9, available at http://www.chathamhouse.org.
uk/files/9408_bp0707lebanon.pdf.
172. Id. at 11.
173. See id. (concluding that “[a]ny political cost involved in setting up the
Tribunal would thus be offset by the higher cost of not doing so.”).
174. Id.
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the emergence of an afflicted state from some form of conflict,
the impetus behind the creation of each institution was
unique. According to Antonio Cassese, the success of a hybrid
tribunal requires two conditions. First, the national judiciary
must be viable or at least partly viable, so that the national system can be relied on to some extent.175 Second, there must be
a need to assuage the nationalistic demands of the local population, which arise when the local government considers the
administration of justice to be an essential attribute of state
sovereignty.176 In other words, the national government must
want to be involved.
Hybrid tribunals present unique features that neither the
ICC nor ad hoc tribunals can provide. First, these tribunals
are often located at the locus delicti, as is the case with the Regulation 64 Panels, SPSC, ECCC, and SCSL. Through public
stigmatization and just retribution, local trials are able to expose those responsible for atrocities to the local population,
leading to gradual reconciliation and a cathartic process for
the victims.177 Proximity to the events in question also gives
these tribunals immediate access to potential evidence and witnesses.178 While ideal, it is not always feasible to establish internationalized tribunals at the situs of the atrocities. For example, for security reasons, both the STL and the SCSL’s trial
of Charles Taylor are located in The Hague.179 The remote
location of these trials, rather than demonstrating a weakness
of the hybrid tribunal, indicates their flexibility and ability to
take into account differing political situations while protecting
the rights and security of both victims and the accused.
Second, local legal personnel are familiar with local laws,
language, and customs, enabling them to take into account
175. Cassese, supra note 1, at 5.
176. Id.
177. Id. at 6.
178. Markus Benzing & Morten Bergsmo, Some Tentative Remarks on the Relationship Between Internationalized Criminal Jurisdictions and the International
Criminal Court, in INTERNATIONALIZED CRIMINAL COURTS: SIERRA LEONE, EAST
TIMOR, KOSOVO, AND CAMBODIA, supra note 1, at 409. While the Rome Statute allows the ICC to function outside of its seat, The Hague has proven to
be and is likely to remain in the future its standard field of operation. Id.; see
also Rome Statute, supra note 12, at arts. 3(3) & 62.
179. The Hague Justice Portal, Taylor, Charles, http://www.haguejustice
portal.net/eCache/DEF/6/414.html (last visited June 1, 2009).
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factors that might escape international personnel.180 Local
personnel can also serve as a valuable resource for elucidating
the national legal system to international personnel. Third,
hybrid tribunals can strengthen the capacity and legitimacy of
local institutions by promoting the legal training of local personnel.181 Such an advantage is referred to as the “spill-over
effect,” resulting in the cultivation of trained professionals
who remain in the national state after the court’s work is completed.182 This capacity-building enables these institutions to
make a more lasting contribution to the local society than
could the ICC or an ad hoc tribunal.
All of the above advantages contribute to the accountability and perceived legitimacy of a hybrid tribunal. However,
the primary benefit of hybrid tribunals is their flexibility. Each
tribunal (at least theoretically) has the opportunity to learn
from its predecessors and incorporate their successes while
avoiding their failures. A national government and the international community, working together, have the opportunity
to tailor a hybrid tribunal to the specific needs of the affected
community. The creation of a hybrid tribunal is often both a
collaborative and combative process between a national government and the international community (generally represented by the U.N.). While the formation of such a tribunal is
generally and preferably the result of a collaborative process
between the U.N. and the affected State, the potentially combative nature of the establishment process can be seen in the
protracted negotiations between the national government and
the international community regarding the Extraordinary
Chambers in Cambodia, as well as in the confusion over the
division of responsibility in the case of the Special Panels in
East Timor. Whether collaborative or combative, such a backand-forth dialogue allows the national government to assert
the needs and wants of the victimized society, while allowing
the international community to ensure that international standards of justice are met. The legitimacy of judicial institutions
in post-conflict situations largely depends on their fairness and
180. See Cassese, supra note 1, at 6; see also Benzing & Bergsmo, supra note
178, at 409.
181. See Cassese, supra note 1, at 6; see also Benzing & Bergsmo, supra note
178, at 410.
182. See Cassese, supra note 1, at 6; see also Benzing & Bergsmo, supra note
178, at 410.
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the quality of justice they deliver.183 Involvement by the national judiciary and domestic personnel imparts a sense of local ownership to the tribunal’s work, which usually increases
accessibility, accountability, and perceived legitimacy for the
local, affected community. When coupled with the introduction of the neutrality and international legal skills provided by
international legal personnel, this makes it possible for these
tribunals to “bootstrap themselves into accountability by the
quality of justice they deliver.”184
B. Challenges Facing Hybrid Tribunals
While offering many benefits as compared to other forms
of international criminal justice, hybrid tribunals also present
a unique set of challenges in achieving justice. Practically
speaking, securing financial resources and ensuring the effective and smooth coordination of national and international
components have proven to be significant obstacles.185 In addition to these practical difficulties, hybrid tribunals also face
legal challenges. They must establish a body of both substantive and procedural law to apply,186 and while the statutes, regulations, and mandates of these tribunals often provide guidance, reconciling the application of national and international law has not always proven an easy task. In East Timor,
for example, despite a regulation stating that the law applied
in East Timor prior to October 25, 1999, would apply in the
SPSC insofar as it did not conflict with either the standards
referenced in section two of the International Legal Standards
or the fulfillment of the mandate given to UNTAET by the
U.N. Security Council resolution, the courts faced serious difficulties identifying which parts of the applicable legislation
were and were not consistent with international legal standards.187
183. Cf. David Luban, Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law 13 (Georgetown Law Faculty Working Papers, Paper 67, 2008) (asserting that the legitimacy of international tribunals
comes from the fairness and quality of justice they deliver, not the political
authority that creates them).
184. Id.
185. See Cassese, supra note 1, at 7.
186. Id. at 8.
187. See id.
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The issue of securing cooperation with local authorities or
foreign states has also been of serious concern.188 Without
such cooperation, securing the presence of alleged perpetrators or witnesses, conducting investigations, and collecting evidence can be difficult if not impossible. For example, though
the SCSL issued the indictment in 2003 of former Liberian
President Charles Taylor for supporting rebel forces in Sierra
Leone, it was not until 2006 that Nigeria reluctantly agreed to
hand Taylor over to the Special Court.189 Nigeria had agreed
to grant Taylor asylum as part of the agreement that removed
Taylor from power and ended Liberia’s civil war, which had
killed as many as 200,000 people.190 Until his arrest, the inability of the Special Court to apprehend Taylor threatened to
undermine both its legitimacy and effectiveness, as Taylor is
widely viewed as one of those most responsible for the atrocities in Sierra Leone.
Hybrid tribunals often come at a much lower economic
cost to the international community than ad hoc tribunals.
This has been both an advantage and a disadvantage. Some
have described these institutions as providing “shoestring justice.”191 While a lower price tag may serve as an impetus for
the creation of such a court, a court with insufficient funding
may lack the resources to provide sufficient legal aid, resulting
in a failure to meet international standards of justice.192 As
seen in the development of the more recent hybrid tribunals,
such as the SCSL and STL, the establishment of a Management Committee to conduct funding and budget allocation
can increase oversight. But the solicitation of contributions
from voluntary donors, coupled with the steep financial commitments undertaken by the national government, also has a
tendency to produce chronic under-funding for these institutions. In the case of the SCSL, it was not poor oversight, but
rather the fact that the tasks entrusted to the Court were simply more costly than originally anticipated that resulted in a
188. Id.
189. See Nigeria Agrees to Hand Taylor Over to Liberian, CNN.COM WORLD
NEWS, March 25, 2006, http://www.cnn.com/2006/WORLD/africa/03/25/
taylor.liberia/index.html (last visited Apr. 8, 2009).
190. Id.
191. See Cockayne, supra note 7, at 617.
192. See Cassese, supra note 1, at 10 (pointing out that the accused often
have no financial means to pay for defense counsel).
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lack of financial resources.193 It has been suggested that an
option which might supplement the division of financial obligations between the national government and an international
organization such as the U.N., or voluntary state contributions,
could be the establishment of an internal foundation to monitor private donations or gifts.194 In January 2007, The Extraordinary Chambers received its first private donation from
Microsoft Singapore. This donation, coupled with negotiations with the Bill and Melinda Gates Foundation concerning
the provision of additional funding and the increasing involvement of the private sector in global politics, raises the possibility that the ECCC and other hybrid courts could avail themselves of private donors to supplement their budgets.195 The
resort to private donors is, of course, subject to its own set of
drawbacks, and precautions must be taken both to ensure the
impartiality of the tribunal and to avoid corruption.196 But
these are risks also associated with the voluntary contributions
of States. What remains essential is that hybrid tribunals are
provided with sufficient funding in order to operate effectively
and render impartial, quality justice. To do so, the international community needs to find creative, but ethical, methods
of funding these judicial institutions.197
C. Hybrid Tribunals and the International Criminal Court
After more than a decade of experimentation with international criminal justice, the international community is now
in a position to reflect on the various successes and failures of
different means of implementing justice.198 One important
question is whether hybrid tribunals are a viable and effective
alternative to the creation of ad hoc tribunals, particularly in
light of the creation of the ICC as a permanent judicial body.
“In the struggle against impunity . . . there is no single panacea
available. One has to rely skillfully upon a host of possible options, using each of them to suit best the historical, social, and
193. Alison Kamhi, Note, Private Funding for Public Justice: The Feasibility of
Donations to the Cambodian Tribunal, 48 HARV. INT’L L.J. 581, 584 (2007).
194. See id. at 581-82.
195. Id. at 582.
196. See id.
197. Id. at 591.
198. Cockayne, supra note 7, at 616.
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legal conditions of each individual situation.”199 Whenever
possible, in the face of large-scale atrocities, the goal should be
to resort to national courts.200 But history has shown that this
is not always feasible. Even with the establishment of the ICC,
the adaptability of hybrid tribunals enables them to bridge
gaps in national capacity that the ICC is unable to fill. While
the existing hybrid tribunals are not without their flaws, the
Special Court for Sierra Leone has served as a strong model
for existing and future hybrid tribunals, and the Extraordinary
Chambers and Special Tribunal for Lebanon are positioned to
deliver the justice the people of Cambodia and Lebanon deserve.
The continued operation of hybrid tribunals in tandem
with the ICC is also consistent with the Rome Statute. The
Preamble of the Statute affirms the principles of complementarity and international cooperation, “recalling” that every
state has a duty to exercise criminal jurisdiction over those responsible for international crimes.201 Realistically, the ICC will
be unable to address all potential situations that fall within its
jurisdiction; in addition, the jurisdiction of the ICC is limited,
extending only to crimes committed after July 1, 2002, and
limited to crimes of the most serious international concern.202
Furthermore, only 109 states are parties to the Statute, limiting
jurisdiction ratione loci and personae.203 Thus, it seems that if a
state sought to discharge its responsibilities to prosecute international crimes with the help of the international community
and the U.N., this exercise of national responsibility would be
in accordance with the object and purpose of the Rome Statute and the principle of complementarity.204
While the ICC benefits from procedures designed to guarantee a high standard of due process and firm funding provisions intended to allow the Court to operate with a high de199. Cassese, supra note 1, at 3.
200. Id. at 4.
201. Benzing & Bergsmo, supra note 178, at 408.
202. Rome Statute, supra note 12, at arts. 1, 11.
203. See International Criminal Court, ICC at a glance, available at http://
www2.icc-cpi.int/menus/icc/about%20the%20court/icc%20at%20a%20
glance/icc%20at%20a%20glance?lan=EN-GB; see also Benzing & Bergsmo,
supra note 178, at 408.
204. Benzing & Bergsmo, supra note 178, at 409.
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gree of independence,205 concerns over funding and the standard of procedural justice have stymied the operation of
hybrid tribunals in the past.206 Additionally, there is a concern
that the jurisprudence of hybrid tribunals may differ from that
of the ICC, creating divergent practice in international criminal law.207 However, international criminal law remains an
emerging system and it is therefore perhaps premature to evaluate whether the jurisprudence of hybrid courts will lead to its
fragmentation or consistent development. The Statute of the
Special Court for Sierra Leone indicates that the Court shall
be guided by the decisions of the Appeals Chambers of the
ICTY and ICTR, a factor which points against fragmentation.208 While the Statute for the Special Tribunal for Lebanon includes no mention of the ICTY or ICTR, its mandate
differs from that of the SCSL as the tribunal will apply only
domestic law.209 Moreover, developing a body of international
criminal law is only one goal of international criminal courts
and tribunals. The abilities of such institutions to promote
peace, reconciliation, accountability, and above all to prevent
future crimes, are equally, if not more, important.210
With respect to the principle of complementarity, article
17 of the Rome Statute provides that the ICC shall only exercise jurisdiction over a case where the state with jurisdiction is
unable or unwilling to prosecute. In determining the capability of the state, article 17 refers to an examination of the national judicial system. For present purposes, the question is
then whether a hybrid tribunal may “count” as a national
court.211 In light of the ambiguous text of the Statute, some
national involvement should suffice, and a teleological inter205. See id. at 411 (setting out the purpose of the procedure as guaranteeing a high standard of fairness for trials and assuming that the ICC will be
able to ensure a high degree of independence).
206. For the funding provisions that govern the ICC see Rome Statute,
supra note 12, at arts. 113-118.
207. See Benzing & Bergsmo, supra note 178, at 410-11.
208. See Statute of the Special Court for Sierra Leone, at art. 20, available
at http://www.specialcourt.org/documents/Statute.html.
209. See Statute of the Special Tribunal for Lebanon, supra note 150, at
art. 2.
210. Judge Theodor Meron, International Criminal tribunal for the former Yugoslavia, IILJ-CHRGJ Public Lecture: International Criminal Justice:
Does It Work? (Feb. 11, 2009).
211. See Benzing & Bergsmo, supra note 178, at 411.
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pretation in accordance with article 31(1) of the Vienna Convention on the Law of Treaties supports the conclusion that
hybrid tribunals may be included under the term national,
since one of the primary aims behind the creation of the ICC
was to end impunity.212 If the principle of complementarity
applies to hybrid tribunals, then, as with national courts, the
hybrid institution would remain under the scrutiny of the ICC,
which could intervene if it deems the tribunal unable or unwilling to conduct a genuine investigation or prosecution.213
Although the process of review of a hybrid tribunal involving
U.N. participation would likely differ from the review of a
solely national investigation or prosecution, such review is not
outside the scope of the ICC’s competence.
Consider the current situation in Darfur, Sudan, and efforts to hold current President Omar al Bashir responsible for
the crimes occurring there. According to the ICC Chief Prosecutor, Luis Moreno-Ocampo, more than 5,000 displaced persons die each month in Darfur.214 Despite the referral of the
situation to the ICC, the attacks against ethnic groups, rapes in
and around camps, and obstruction of humanitarian efforts
persist, with the suspected complicity of the Sudanese government.215 While most foreign diplomats, regional leaders, and
many Sudanese citizens support the idea of holding Bashir accountable for his crimes,216 the recent decision by the ICC to
issue an arrest warrant for Bashir has resulted in orders that
several Western aid groups curb their work and leave Sudan,
as well as widespread protests throughout the country.217 The
Sudanese Ambassador to the U.N. has condemned the ICC’s
212. Id. at 412.
213. See id. at 413.
214. Margaret Besheer, ICC Prosecutor Warns of Possible Sudanese Reprisals if
Bashir Arrest Warrant Issued, VOICE OF AMERICA, Dec. 3, 2008, http://voanews.
com/english/2008-12-03-voa52.cfm.
215. See id. (suggesting that these acts are “only possible with the compliance of the Sudanese government”).
216. A Middle Way of Justice in Sudan, THE ECONOMIST, Dec. 11, 2008, available at http://www.economist.com/world/international/displaystory.cfm?
story_id=12777952 [hereinafter THE ECONOMIST]; Louis Charbonneau, ICC
to indict Sudan’s Bashir over Darfur-diplomats, REUTERS, Feb. 12, 2009, available
at http://www.alertnet.org/thenews/newsdesk/N11514424.htm.
217. See Marlise Simons and Neil MacFarquhar, Court Issues Arrest Warrant
for Sudan’s Leader, N.Y. TIMES, Mar. 5, 2009, available at http://www.nytimes.
com/2009/03/05/world/africa/05court.html?hp.
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decision as “an attempt at regime change,” and asserts that Sudan will not be bound by the warrant.218
Prior to the issuance of the warrant for Bashir, some, including Sudan’s most prominent political opposition leader,
Sadiq al-Mahdi, stated that an independent hybrid tribunal,
rather than the ICC, might be a more appropriate venue for
dealing with the situation.219 The establishment of such a tribunal in Sudan would allow the ICC to defer to the hybrid
tribunal’s jurisdiction in accordance with article 16, which permits the Security Council to request deferral of an investigation or prosecution in accordance with the principle of complementarity.220 As discussed above, the ICC may defer an
ongoing investigation or prosecution only where the Court is
satisfied that the national, or in this case, hybrid, court will
satisfy international standards of justice in a manner on par
with that of the ICC itself.221 For the Sudanese justice system,
this would be no small hurdle and undoubtedly would depend
on the amount of assistance contributed by the international
community. It is also far from clear that Bashir’s government
would be more inclined to submit to a hybrid tribunal than to
the ICC or that the creation of such a tribunal would negate
the resurgence of disorder caused by the possible prosecution
of Sudan’s current head of state.222 On March 10, 2009, Sudan stated that it was considering its options with respect to
having the arrest warrant quashed, indicating that it may indeed decide to engage with, rather than simply defy, the
ICC.223 However, recently, despite the issuance of an arrest
warrant, Bashir has traveled throughout Africa—openly defying the ICC and demonstrating the difficulty the Court faces
in getting indictees into the dock. Eritrea, Egypt, and Ethiopia, states to which Bashir has traveled, have not signed the
218. Id.
219. THE ECONOMIST, supra note 216.
220. See Rome Statute, supra note 12, at art. 1 (stating that the ICC “shall
be complementary to national criminal jurisdictions”); see also Rome Statute,
supra note 12, at art. 16 (permitting the Security Council to request deferral
of an investigation or prosecution).
221. See THE ECONOMIST, supra note 216.
222. See id. (highlighting that in public Mr. Bashir’s government denounces the ICC’s intervention, while in private they have engaged it).
223. Andrew Heavens, Sudan Seeks Options to Get War Crime Warrant Lifted,
REUTERS, Mar. 10, 2009, available at http://www.alertnet.org/thenews/news
desk/LA931822.htm.
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Rome Statute and thus have no direct obligation to arrest the
Sudanese president.224 Although the ICC has asserted its jurisdiction over Bashir, the dialogue regarding the creation of a
hybrid tribunal in Darfur indicates the potential for a co-existing relationship between the ICC and hybrid tribunals.
Similar dialogue has taken place in Kenya. The International Centre for Justice and Conflict (ICJC), a civil society organization, has proposed the creation of a hybrid tribunal for
Kenya to prosecute crimes related to the violence that erupted
following the December 2007 elections, in the midst of which
it is estimated that 1,500 people were killed and more than
300,000 were forced to flee their homes.225 According to the
ICJC chief executive,
[t]he biggest threat to security in Kenya is the prevailing culture of impunity. The periodic cycles of extreme violence that Kenya has undergone cannot be
broken unless sufficient political will is demonstrated
that perpetrators of gross violations of human rights
will be held accountable and made to pay for their
heinous acts.226
The report of the Commission of Inquiry into Post-Election
Violence, headed by Justice Philip Waki, was published on October 15, 2008, after a three-month investigation, and made
several recommendations as to the formation of a special tribunal with an international component to prosecute those responsible for the post-election violence.227 The report provided, and Kofi Annan also warned, that the failure of the
Kenyan government to deliver justice will result in the Waki
224. See Catch Me If You Can, THE ECONOMIST, Mar. 28, 2009, http://www.
economist.com/world/mideast-africa/displaystory.cfm?story_id=13395465.
Although the African Union recently asserted that it will not aid the ICC in
the arrest of Bashir, the Prosecutor has stated that this will not affect the
work of the ICC. See African Move on Bashir Dismissed, BBC NEWS, July 4, 2009,
available at http://news.bbc.co.uk/2/hi/africa/8134718.stm.
225. See Kenya: Civil Society Proposes Hybrid Tribunal for Kenya, AFRIQUE EN
LIGNE, Mar. 9, 2009, available at http://www.afriquejet.com/news/africanews/kenya:-civil-society-proposes-hybrid-tribunal-for-kenya-2009021321916.
html; see also Annan Warms Kenya Over Tribunal, BBC NEWS, Feb. 24, 2009,
available at http://news.bbc.co.uk/2/hi/africa/7908466.stm.
226. Kenya: Civil Society Proposes Hybrid Tribunal for Kenya, supra note 225.
227. See Human Rights Watch, Kenya: Promptly Establish Special Tribunal,
Oct. 15, 2008, http://www.hrw.org/en/news/2008/10/15/kenya-promptlyestablish-special-tribunal.
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Commission’s findings and list of suspects (which is said to include names of several government officials) being turned
over to the prosecutor of the ICC.228 Several have recommended a hybrid structure for the Kenyan tribunal, advising
that it contain both national and international judges and staff
and apply both Kenyan and international law.229 The Prosecutor of the ICC recently granted the Kenyan government a
twelve-month extension “to employ all judicial mechanisms
with the help of Parliament to deal with perpetrators.”230 A
statement released after the meeting of the Prosecutor and the
Kenyan delegation asserted that if there is no parliamentary
agreement, then in accordance with Kenya’s commitment to
end impunity for those responsible for the most serious crimes
with respect to the election violence, the Government will refer the situation to the prosecutor in accordance with Article
14 of the Rome Statute.231 The proposal of a hybrid tribunal
coupled with the intent to refer the situation to the ICC if the
Kenyan government fails to discharge its responsibility to hold
persons accountable buttresses the idea that the ICC and hybrid tribunals can work in tandem in accordance with the
principle of complementarity. It also reinforces the argument
that hybrid tribunals will continue to carry out an important
role in the sphere of international criminal justice.
V. CONCLUSION
The current Sudanese and Kenyan situations reveal the
role hybrid tribunals may play in the future of international
criminal justice, and also demonstrate that the ICC may not be
the most appropriate venue for adjudicating international
crimes in every situation. The creation of a hybrid tribunal
may be appropriate when: 1) the ICC lacks jurisdiction ratione
228. See Kenya: Civil Society Proposes Hybrid Tribunal for Kenya, supra note
225; see also Ben Rawlence & Nick Daniels, Kenya: “100% Waki”, THE STANDARD, Nov. 28, 2008, available at http://www.hrw.org/en/news/2008/12/
01/kenya-100-waki.
229. See Yash Ghai, Kenya: Framework for the Special Tribunal, ALL-AFRICA.
COM, Feb. 20, 2009, http://allafrica.com/stories/200902200664.html; see
also Kenya: Civil Society Proposes Hybrid Tribunal for Kenya, supra note 225.
230. Martin Mutua, ICC Prosecutor Gives Post-Election Suspects More Time, THE
STANDARD, July 4, 2009, available at http://www.eastandard.net/InsidePage.
php?id=1144018501&cid=4.
231. See id.
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personae, temporis, materiae, or loci; 2) the ICC is already engaged
in resource-intensive and long-term investigations and prosecutions that prevent it from taking on another situation; 3) the
ICC is already seized of a particular situation, but due to resource constraints can only deal with the highest-level perpetrators; or 4) the creation of a hybrid tribunal is more beneficial to a state’s future development and capacity-building.232
Of course, it is still too early conclusively to determine the
role hybrid tribunals will play, and whether they will operate in
tandem or in tension with the ICC. It is apparent, however,
that these institutions as mechanisms of justice should not be
abandoned simply due to the creation of a permanent international criminal court. The ICC has not rendered the hybrid
tribunal useless as a mechanism for implementing criminal
justice, and the Court will be unable to address every current
or future conflict due to resource constraints and restrictions
on its jurisdiction. More importantly, as argued by this Note,
hybrid tribunals present unique advantages as compared to
purely international or national trials—making such institutions a viable, flexible, and at times more desirable option that
should be retained in the cache of choices available in the
fight against impunity.
232. Benzing & Bergsmo, supra note 178, at 416.
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