Academic journal article Denver Journal of International Law and Policy

The Building Blocks of Hybrid Justice

Academic journal article Denver Journal of International Law and Policy

The Building Blocks of Hybrid Justice

Article excerpt

F. A Selective Multilateral Treaty

The ICC is the creature of a multilateral treaty, but one open to all states. (273) Besides the regional tribunals discussed above, it has been rare for a subset of states since Nuremberg to form an "international" tribunal by way of multilateral treaty. One partial precedent is found in the mixed slavery courts established by Great Britain in the early 19th century in an effort to eradicate the slave trade, a forgotten chapter in the story of international criminal law rediscovered by scholars. (274) The British strategy involved executing a network of bilateral treaties with maritime states, including Spain, Brazil, the Netherlands, and Portugal. (275) These treaties gave parties the right to search and condemn vessels engaged in the slave trade and to subject them to trial before a mixed commission featuring judges from the capturing nation, the flagship nation, and potentially a "neutral" nation. (276) The mixed commissions were established in treaty-partners' ports-of-call, including Freetown, Sierra Leone; Havana, Cuba; Rio de Janeiro, Brazil; and Suriname. (277) This network of otherwise bilateral treaties established something close to a global enforcement regime even without the involvement of France (which never joined) and the United States (which joined late in the game).

British overtures to the United States met resistance, due in part to antagonism toward granting a mutual right to search ships on the high seas (a central pillar of the British approach), but also to perceived constitutional infirmities, notwithstanding the U.S. Constitution's expansive Treaty Power. (278) The United States preferred for U.S. vessels captured by the British to be returned to the United States for trial. It should be noted that U.S. opposition did not reflect any desire to preserve or protect the slave trade; although slavery remained legal in the United States at the time, Congress had already declared the slave trade to be a form of "piracy" punishable by death. (279) In 1862 and in the midst of the Civil War, the United States finally assented to the British proposal and entered into what became known as the Lyons-Seward Treaty. (280) Mixed courts involving the United States were established in New York, Sierra Leone, and Capetown. (281) By this time, however, the slave trade had been largely suppressed, and these courts were never activated. (282)

These tribunals were not strictly penal in nature. Rather, they "had jurisdiction only over the ships and their cargo; the crew would either be let loose or repatriated for prosecution." (283) Later, "the mixed courts were authorized to hold slave crews in custody until they could be transferred to national authorities for trial." (284) The ships were generally auctioned off, with the proceeds going toward the expenses associated with the courts, the two governments, and the captors as prize money. (285) As such, these courts administered what were more in the nature of in rem actions, although it has been argued that "[c]ondemnation of a vessel, while nominally in rem, can be criminal when done to punish the owner" (286) as with civil forfeiture laws. (287) There was no right to appeal. (288) All told, upwards of 80,000 would-be slaves were freed by these mixed courts over the course of their existence. (289)

The Lockerbie Tribunal provides another notable example of the use of a treaty amongst a limited group of states to create an accountability mechanism. (290) Following the bombing of Pan-Am Flight 103 over Lockerbie, Scotland, in 1988, an international investigation led to the conclusion that the bombing had been the work of two Libyan agents. (291) The United Kingdom and the United States both issued indictments in 1991. (292) Libya, however, refused to extradite its nationals, asserting the right to prosecute them itself under the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, which contains an aut dedere aut judicare provision at Article 7. …

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