Part I: Adjudication of International Crimes: Are Hybrid Tribunals a Better Choice?

Introduction

This article attempts to comprehend and analyze the procedure that is being followed while adjudicating international crimes. The conceptual understanding of what an international crime is and the way in which they should be adjudicated deserves structural attention.[i] However, this article does not elaborate on the meaning and categories of international crime. This article focusses on analyzing the procedure in which an international crime is adjudicated and ought to be adjudicated. The article also tries to propose a brief understanding of why international crimes must be adjudicated by hybrid Courts and Tribunals that combine both the elements of domestic and international Courts and Tribunals. Additionally, the author tries to analyze why hybrid Tribunals are a suitable alternative to pure international Courts as well as domestic Courts.

I. Assessing the adjudication of international crimes

When international crimes occur, they attract grave consequences that surpass a specific territorial border. After World War I, a Court was established to prosecute such war crimes and crimes against humanity. However, the effort was not fruitful primarily because it put limitations on the sovereignty of Nations. The aftermath of the World War II was even more grave which paved way to the establishment of International Military Tribunal (IMT) at Nuremberg.

A. Nuremberg trials

The Nuremberg trials, a chain of military trials was held right after World War II by the Allied forces, which led to them being recognized as ‘victor’s justice’. This was because since the Allied Powers conducted these trials, this limited the use of Nuremberg’s model to an instructional precedent. In these trials, there existed a lack of objectiveness. This was due to the fact that it allowed the victors to handle the cases and prescribe punishment to the enemies (Axis powers) thus depicting power disparity and a great amount of bias during the adjudication procedure. Undoubtedly, there was procedural bias and substantive unfairness due to a lack of objectivity and therefore, this model cannot be considered as a precise print. Additionally, Nuremberg trials has not framed any universal forum to unanimously approve an international crime and its adjudication. To illustrate this point further- there are disparities between the stands taken by the American Court and the South African Court. Ninth Circuit demonstrated the general consensus to jus cogens norms, whereas a district Court in In re South African Apartheid Litigation rejected the Nuremberg model and refused to acknowledge such precedents. Subsequently, an alternative to the Nuremberg precedent got developed.

The Nuremberg model can be traced to apply and understand international jurisdiction to adjudicate international crimes. It is undeniable that the gravity and intensity of the crimes that happened before, during or after the war were such that it theoretically and politically justified the adjudications of such trials by internationals authorities. The Nuremberg’s legacy dispersed the notion that “States should not concern themselves with human rights violations occurring within the borders of another State”. The principle of universal jurisdiction evolved as a doctrine to address offences such as war crimes and crimes against humanity and the same gained legitimacy. However, modern international criminal law is evolving and the model that Nuremberg trials proposed is “a blue print and not a precise model”.[ii]

B. International Criminal Courts and ad hoc Tribunals

The International Courts and Tribunals are “independent judicial bodies created by international instruments and they are invested with the authority to apply international law to specific cases brought before them”.

a) Ad hoc Tribunals

Ad hoc Tribunals are such “criminal bodies that are established for one specific cause or purpose”. These ad hoc Tribunals marginally involve the domestic Courts in the adjudication of international crimes, thus paying respect to the State’s sovereignty as compared to victor’s justice in Nuremberg. However, these ad hoc Tribunals emphasize international primacy and norms over domestic Courts. International Criminal Tribunal for Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) are models of ad hoc Tribunals and are considered as progeny of Nuremberg trials.

The argument proposed by proponents of ad hoc Tribunals is that the procedure followed by these Tribunals reflect upon a goal of consistency as compared to such institutions that incorporate domestic laws which would vary from state to state. These Tribunals rely on international norms and standards to resolve a dispute that occur within a particular domestic state. Bearing this in mind, a counter argument can be placed by pointing out how unjust it would be if domestic criminals are held accountable under foreign norms without giving due regard to the domestic rules. Technically speaking, the domestic penal codes must be supplemented by national Acts to reflect the necessary jus cogens norms only when the domestic law does not condone or provide jurisdiction over such offences that are questioned in international trials. This requires a certain level of flexibility to interpret universal standards into specific national laws rather than intrusively supplanting domestic law with international norms.

One of the major drawbacks with respect to ad hoc Tribunals is with regard to the location of trial chambers of the ICTY and the ICTR which distances the crime from the domestic domain. The trial chambers of the ICTY are located in Hague and Netherlands and the ICTR trial chambers are located in Arusha and Tanzania. These ad hoc trials are conducted in these locations, which detaches the perpetrators from the cultural and legal expectations of the domestic domain where the crime was committed and they are unduly subjected to foreign norms and standards. As a result, the crucial injustice served by such ad hoc Tribunals is the relinquishment of the victim’s retribution because victims can neither participate during the trial nor can they be present while the punishment is being prescribed. This is a significant deficiency as it separates justice from the crime.

There are inconsistencies when it comes to sentencing methodologies implemented by these ad hoc Tribunals. While adjudicating an international crime, following the footsteps of the Nuremberg model, the ad hoc Tribunals perceive domestic penal codes as insufficient and they substitute it with international standards to resolve them. To illustrate, the ICTY and the ICTR contain a provision which imposes a limitation that excludes the imposition of death penalty and other alternative forms of punishment, such as fines. However, Rwanda refused ICTR’s Statute that did not have a provision to apply domestic penal punishments and further promoted to include a provision of death penalty in the ICTR Statute. Due to this, the ad hoc Tribunals now remain “relatively free to develop their own methods of determining an appropriate sentence, within the constraints of their Statutes, their rules, and the Security Council’s expressed goals for them”. Conducting adjudication while complying to such international norms will give rise to conflicting precedents which proves that ad hoc Tribunals are not as effective as they claim to be.

b) International Criminal Court (ICC)

Going by principle, the ICC conducts adjudication based on the complementarity doctrine which gives due regard to domestic laws and jurisdiction. ICC gets involved only when the domestic State is unable or inadequate to prosecute. This process renders adequate respect to the State’s sovereignty and only intrudes when a situation demands for necessary imposition of jus cogens norms.

Like ad hoc Tribunals, there are inefficiencies with regard to its location mainly because the trials are usually conducted outside the domestic State in which the crime was committed. This separates perpetrators and victims from the State’s sovereignty. Another drawback of the ICC is its composition. The ICC is exclusively managed by international actors (international prosecutor and judiciary), who are arbitrarily imposed on domestic criminals. This entire process steps on the State’s sovereignty.

II. Hybrid Tribunals

Challenges arise while prosecuting international crimes mainly because there is no universally accepted permanent international structure to implement international jus cogens norms and impose sanctions. This part of the article will examine why and how hybrid Tribunals could be an effective structure in order to adjudicate international crimes.

Hybrid Tribunals are a new type of judicial institutions where the elements of domestic Courts and internationals Tribunals co-exist. Hybrid Courts blend domestic actors and norms while respecting international jus cogens norms. The adjudication procedure followed by hybrid Tribunals incorporate active involvement of both foreign and domestic judges to try crimes that are prosecuted and defended by lawyers from the countries that are a part of the dispute. The disputes are decided according to the domestic laws that have been restructured according to international standards and norms. This gives due regard to domestic responsibility alongside safeguarding international approval. Hybrid Tribunals are flexible institutions that are tailor-made to address and resolve specific international crimes, thus allowing to cater to the needs of the domestic State and its particular penal Code. Every hybrid Tribunal comprises of both domestic and international actors and adjudicates particular crimes by following domestic penal laws as well as international norms. There are two categories of hybrid justice:

• Hybrid Courts – These Courts are a mix of domestic and international Courts that operate as independent criminal institutions outside the traditional realm of domestic jurisdiction. There is an interlinkage with the domestic system.

E.g.: Sierra Leone, Lebanon

• Internationalized Domestic Courts – These Courts are an integration of international and domestic Courts into the structure of the domestic legal system. They apply both domestic and international laws. Furthermore, domestic judges may overrule international judges in some situations.

E.g.: Kosovo, East Timor, Cambodia

A significant difference between the above two categories is that internationalized domestic institutions lack a separate international legal identity of their own which is distinct from the legal personality of the domestic state.

a) Kosovo Regulation 64 Panels

The conflict between the Federal Republic of Yugoslavia and NATO in 1999 resulted in the establishment of an ‘international civil presence’ in Kosovo. The United Nations Interim Administration Mission in Kosovo (UNMIK) carried out the ‘international civil presence’ which proposed a final settlement of disputes and further promoted self-government, basic civilian administrative functions, development of provisional institutions for democratic and autonomous government which would protect and guarantees human rights.

Hybrid Tribunals were established because the aftermath of Kosovo atrocities was such that the infrastructure of the judicial system was severely damaged in a way that domestic adjudication was not an option anymore. Due to the civil conflict, the number of local lawyers and judges were scarce and few of them refused to serve, while the remaining lacked experience. The ICTY prosecutor in charge of the nearby ad hoc Tribunal stated that due to the lack of resources only the ‘most culpable’ could be tried and the remaining perpetrators must be dealt by domestic Courts. As discussed earlier, this process would result in ‘disparate treatment’ under international norms (where on one hand, international standard forbade death penalty and on the other hand, domestic laws applied to it considering the gravity of the crimes).

Henceforth, Regulation was issued in 1999 which stated: “All legislative and executive Authority with respect to Kosovo, including the administration of the judiciary, is vested in UNMIK and is exercised by the Special Representative of the Secretary General” and it also provided that “The special representative has the power to appoint any eligible person to perform functions in the civil administration in Kosovo, including the judiciary, or remove such person in accordance with the applicable law”. To be more specific, the applicable law refers to the set of regulations promulgated by the Special Representative and subsidiary instruments issued thereunder and the law in force in Kosovo. UNMIK authorities applied a hybrid of domestic and international laws to the Tribunal. However, the domestic laws were modified to accommodate international human rights norms and standards to ensure the same did not conflict with the international legal standards. This ensured adequate validity and respect under international law. Though there were issues pertaining to a lack of systematic publications and brevity of case decisions,[iii] hybrid Tribunals played a vital role in achieving independence in early 2008.[iv]

b) The Special Court for Sierra Leone

This Court was motivated to prosecute people who ‘had the greatest responsibility’ during the Sierra Leone Civil War. After the civil war, domestic Courts were not adequately prepared to try war crime trials because of insufficient resources and infrastructure. A key milestone of the SCSL is the proceedings against Charles Taylor, where a former head of the State was convicted by an international Tribunal that was conducted in Hague. The Court’s statute specifies that it shall be guided by both the decisions of ICTY and ICTR, to deduce International Humanitarian Law and the decisions of the Supreme Court of Sierra Leone to interpret domestic laws.

Accordingly, significant changes were made to accommodate international law without overpowering the State’s sovereignty, while addressing the domestic needs after the conflict. For example, the Tribunal relied on a vague definition to examine the crime of rape (the phrase was broadened by using ‘other crimes of sexual violence’), rather than the specific definition used in the ICC. This was done to tackle greater number of crimes that occurred during the conflict. Furthermore, Sierra Leone was inclined towards holding juvenile soldiers accountable for their actions under their domestic penal laws, but this conflicted with the international norms that objected to judicial accountability for children below eighteen. Subsequently, the Tribunal tried to maintain a balance between the two, and child soldier rehabilitation programs were implemented to further this cause.[v]

Part II of the Article can be accessed here.