"Hybrid" Justice in East Timor, Sierra Leone, and Cambodia: "Lessons Learned" and Prospects for the Future
Cohen, David, Stanford Journal of International Law
As is well known, the forty-five years after the completion of the Nuremberg and Tokyo trials produced a large body of new substantive international humanitarian law. However, because of the political impasses generated by the Cold War, there was a general failure to create an institutional framework in which that body of law could be applied. This situation changed radically in 1993-94, with the creation of the Ad Hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Ad Hoc International Criminal Tribunal for Rwanda (ICTR). The ICTY and the ICTR were "experimental," to borrow Justice Robert Jackson's phrase from Nuremberg, (1) in that they had no precedent to build upon other than their WWII counterparts, and those tribunals had been the product of a very different conflict and international political order. It is hardly surprising that, despite their considerable achievements, the ICTY and the ICTR did not provide a definitive institutional model for the implementation of international justice. On the one hand, they were destined to be superseded by the advent of the International Criminal Court, based upon the 1998 Rome Statute of the International Criminal Court. On the other hand, the U.N. Security Council, and the international community more generally, became aware of a number of features of the ICTY and the ICTR that militated against using them as a model for further ad hoc international criminal courts.
To address these perceived disadvantages and problems, the United Nations responded to subsequent demands for accountability for war crimes, crimes against humanity, and genocide by developing a series of new "experimental" courts. These are the so-called "hybrid" or "mixed" tribunals. They are called "hybrid" because they involve the combined effort of the international community and the national institutions of the country where they crimes were committed. The hybrid tribunals typically employ both national and international judicial actors and incorporate both domestic and international law in their statutes. (2) There was no precedent in the realm of international justice for these tribunals.
This article will discuss three hybrid tribunals: the Special Panels for Serious Crimes (SPSC) in Dili, East Timor; (3) the Special Court for Sierra Leone (SCSL) in Freetown; and the Extraordinary Chambers in the Courts of Cambodia (ECCC)in Phnom Penh. These three courts are all in different stages of their history: The trials before the SPSC in East Timor were completed in May 2005, the cases before the SCSL are well-advanced, (4) and the ECCC began pre-trial investigations in July 2006. The aim here will be to draw upon the "lessons learned" from the experience of seeking accountability in East Timor and Sierra Leone to assess the prospects and challenges facing the ECCC as it begins its task. An assessment of the experience of these three tribunals may also provide helpful insights for the two new hybrid tribunals currently being planned for Lebanon and Burundi.
Before turning to this task, it will be helpful to examine the factors affecting the performance of the ICTY and the ICTR that led to the creation of hybrid tribunals in the first place. Only by understanding the perceived problems the United Nations has reacted against will it be possible to appreciate certain features and shortcomings of the "hybrid" courts.
II. EXPENSIVE JUSTICE: THE ICTR, THE ICTY, AND THE DEVELOPMENT OF "HYBRID" ALTERNATIVES
To put the hybrid tribunals into proper perspective, it is important to first appreciate the institutional scale of the ICTY and the ICTR. This is the case because the scale, duration, and expense of these institutions were among the chief factors that led policymakers to eschew creating any further international ad hoc courts and drove them instead to experiment with smaller and less costly alternatives. While the ICTR was long the smaller, more neglected of the two tribunals, this has become increasingly less the case in regard to staffing and budget. …