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\\server05\productn\N\NYI\41-4\NYI409.txt unknown Seq: 1 16-NOV-09 10:59 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). 1013 R R R R R R R R R R R R R \\server05\productn\N\NYI\41-4\NYI409.txt 1014 unknown Seq: 2 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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.”). \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 3 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1015 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- \\server05\productn\N\NYI\41-4\NYI409.txt 1016 unknown Seq: 4 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 5 16-NOV-09 POSITIONING HYBRID TRIBUNALS 10:59 1017 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). \\server05\productn\N\NYI\41-4\NYI409.txt 1018 unknown Seq: 6 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 7 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1019 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- \\server05\productn\N\NYI\41-4\NYI409.txt 1020 unknown Seq: 8 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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 \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 9 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1021 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. \\server05\productn\N\NYI\41-4\NYI409.txt 1022 unknown Seq: 10 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 11 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1023 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. \\server05\productn\N\NYI\41-4\NYI409.txt 1024 unknown Seq: 12 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 13 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1025 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. \\server05\productn\N\NYI\41-4\NYI409.txt 1026 unknown Seq: 14 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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 \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 15 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1027 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 \\server05\productn\N\NYI\41-4\NYI409.txt 1028 unknown Seq: 16 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 17 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1029 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. \\server05\productn\N\NYI\41-4\NYI409.txt 1030 unknown Seq: 18 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 19 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1031 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. \\server05\productn\N\NYI\41-4\NYI409.txt 1032 unknown Seq: 20 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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 \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 21 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1033 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. \\server05\productn\N\NYI\41-4\NYI409.txt 1034 unknown Seq: 22 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 23 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1035 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, \\server05\productn\N\NYI\41-4\NYI409.txt 1036 unknown Seq: 24 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 25 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1037 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. \\server05\productn\N\NYI\41-4\NYI409.txt 1038 unknown Seq: 26 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 27 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1039 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 \\server05\productn\N\NYI\41-4\NYI409.txt 1040 unknown Seq: 28 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 29 16-NOV-09 POSITIONING HYBRID TRIBUNALS 10:59 1041 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. \\server05\productn\N\NYI\41-4\NYI409.txt 1042 unknown Seq: 30 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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). \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 31 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1043 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. \\server05\productn\N\NYI\41-4\NYI409.txt 1044 unknown Seq: 32 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 33 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1045 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). \\server05\productn\N\NYI\41-4\NYI409.txt 1046 unknown Seq: 34 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 35 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1047 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. \\server05\productn\N\NYI\41-4\NYI409.txt 1048 unknown Seq: 36 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 37 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1049 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. \\server05\productn\N\NYI\41-4\NYI409.txt 1050 unknown Seq: 38 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 39 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1051 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. \\server05\productn\N\NYI\41-4\NYI409.txt 1052 unknown Seq: 40 INTERNATIONAL LAW AND POLITICS 16-NOV-09 10:59 [Vol. 41:1013 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. \\server05\productn\N\NYI\41-4\NYI409.txt 2009] unknown Seq: 41 POSITIONING HYBRID TRIBUNALS 16-NOV-09 10:59 1053 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. \\server05\productn\N\NYI\41-4\NYI409.txt unknown Seq: 42 16-NOV-09 10:59