Hybrid Courts remain promising

» by Elisabetta Baviera

I wish to explore one of the most hazardous pitfalls of post-conflict international criminal prosecutions: to lack, or to be perceived to lack solid foundations of legitimacy. While the context selected to exemplify my arguments is post-genocide Rwanda, with the International Criminal Tribunal for Rwanda as the main object of critique, many of the issues raised have wide repercussions that transcend any particular post-conflict scenario. Indeed, lack of legitimacy is a question that has been identified, and extensively debated, in the enterprise of international criminal justice from the moment of its alleged inception at Nürnberg. It is worthy of note that a parallel legitimacy debate can be discerned surrounding the doctrine of universal jurisdiction, that certain crimes are so heinous that anyone suspected of having committed them must be arrested, charged, tried and sentenced by any court in any state. In practice, the exercise of universal jurisdiction varies abruptly from country to country, testifying to an uneven acceptance of the principle, thus casting a cloud of doubt over its legitimacy. '[T]he disparities in practice should raise serious concerns as to the legitimacy and perceived legitimacy of such globalized justice.' Further damage is caused by the remoteness of 'externalized justice', its inability to touch the affected society. The relationship between international criminal prosecutions and exercises of universal jurisdiction in certain national fora is suggested by, inter alia, the fact that many judges pondering universal jurisdiction refer explicitly to institutions of international criminal justice, such as the International Military Tribunal at Nüremberg, the International Criminal Tribunal for Former Yugoslavia, the ICTR and, of course, the International Criminal Court, precisely in order to legitimise an exercise of jurisdiction.

'Legitimacy' is a much invoked and rarely defined concept. A brief description of what it entails in the context of this discussion will be briefly addressed here. Essentially, 'legitimacy' denotes acceptance, by reference to various standards, such as morality or legality or 'politics', in the eyes of different observers, such as the 'international community' or 'Rwandan society'. It is, therefore, a highly subjective value. As this essay unfolds, the legitimacy of the ICTR will be considered primarily by reference to Rwandan society, additionally touching upon the judgment of various actors external to Rwanda, such as the 'international community' and non-governmental organisations (NGOs). It will appear that there is no consensus between these groups; it should also be remembered that agreement within them does not exist either. The nebulosity surrounding the idea of legitimacy should not, however, detract from its momentous significance. International legitimacy, that is, legitimacy in the eyes of international governmental and civil society, impacts on the future of international criminal justice, transitional and permanent alike, for it plays an important role in policy shaping. Local legitimacy equally carries great weight in determining the success of international criminal justice mechanisms. For example, the declaratory function of trials is wasted on an audience that considers them illegitimate, thus depriving the procedure of any potential to fulfil the expectations it raises as well as its stated aims, including the establishment of a 'truthful' historical record, or a contribution to some form of reconciliation.

This inquiry considers whether hybrid tribunals might encounter, or engender, fewer shortcomings than purely international ones, in particular with regard to legitimacy. Tarnished legitimacy is of course not the only thorn in the side of international criminal prosecutions. It will also be suggested that purely international tribunals, in comparison with 'hybrids', do not possess the potential to contribute as significantly to other fundamental post- conflict processes, such as institutional reconstruction, some form of reconciliation and the development of an institutional and jurisprudential body of law which addresses local needs and dynamics while conforming to international human rights standards. These shortfalls do, nonetheless, deal damaging blows to the trials' legitimacy, as do perceptions that they might be inefficient or insensitive. No single post-conflict measure is capable of meeting the needs of torn societies completely: this essay does not seek to condemn international trials by reference to standards outside their stated objectives. However, should hybrid courts display the potential to reach further and deeper than purely international ones, the argument that the former constitute a more attractive choice in certain post- conflict contexts will have been made.

The focus on 'hybrid solutions' will require some justification, which will be provided in Part I. The nature of hybrid tribunals will be outlined first; their advantages introduced; the 'hybrid' tribunals of East Timor and Sierra Leone display what may appear congenital defects: these will be addressed; it will nonetheless be advanced that, especially in view of the current developments in international criminal justice, the hybrid idea must not be abandoned on the basis of its disappointing performance thus far. Part II will be focused on Rwanda and the ICTR: it will be advanced, through an analysis of the legitimacy stumbling-blocks encountered by the Tribunal, that hybrid courts, in part relieved of the burden of their past failures in the first part of the discussion, do still provide a viable solution to address some of the defects discerned. In Part III, some additional benefits that hybrid tribunals can entail will be briefly outlined.

© Elisabetta Baviera 2004. To contact the author write to »

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