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Home EJIL Analysis Tribunals are Dead, Long Live Tribunals: MICT, the Kosovo Specialist Chambers and the Turn to New Hybridity

Tribunals are Dead, Long Live Tribunals: MICT, the Kosovo Specialist Chambers and the Turn to New Hybridity

Published on September 23, 2016        Author: 

Many say that there is “tribunal fatigue”. International tribunals have been said to be too costly and too slow. It has become clear that the ICC can only deal with a few situations. Calls for the establishment of new ad hoc tribunals, for instance in relation to MH17 or Syria, have not succeeded. Instead, we have seen a trend towards “new hybridity”, namely the establishment of special judicial mechanisms. The United Nations Mechanism for International Criminal Tribunals (the ‘Mechanism’) and the newly established Kosovo Specialist Chambers and Specialist Prosecutor’s Office (formally Kosovo Relocated Specialist Judicial Institution) are part of this trend. The name of both institutions indicates caution and compromise. The title “tribunal” was avoided. The two institutions are representative of a broader turn to hybridity in international criminal justice. In this post, I will discuss some of their distinct features and challenges.

I. The status quo: International justice 4D

Let us start with the status quo. International criminal justice has traditionally recognized two main forums to investigate and try international crimes, namely domestic and international jurisdiction.

National courts have traditionally been the main forum, given that international crimes have domestic roots. In recent years, more and more States have adopted specialized laws or special prosecution units to investigate and prosecute international crimes (e.g., Guatemala, Colombia, Uganda).

The second forum is international jurisdiction. International institutions have been seen as necessary corollary to domestic jurisdiction in specific circumstances. As Judge Röling argued, international crimes are violations of “international law”, hence “an international judge should try the international offences”. This led to the turn to fully international courts and tribunals, such as the ad hoc tribunals and the ICC.

But there is a “third” way. There has been a need for tailor-made mechanisms and situation-specific responses. We have witnessed the emergence of “hybrid” or “mixed” models since the 1990s. They are partly a result of concerns relating to the efficiency and cost-effectiveness of international justice, and the ambition to make justice more visible to populations affected.

The term “hybrid” itself is a rather vague label. It combines two spheres, the “domestic” and the “international”. It make sense of the dual nature of international crimes, as both domestic and international.

Broadly speaking, there are two types of “hybrids”. The first one are “hybrid Courts”. They have an international legal basis and operate typically as independent criminal institutions outside the traditional realm of domestic jurisdiction. Classical examples are the Special Court for Sierra Leone and the Special Tribunal for Lebanon. In practice, these courts have tended to argue that they are ‘international’ rather than ‘domestic’.

The second type of “hybrids’ are mixed domestic–international courts that form part of the domestic system, but with adjustments in relation to the composition of staff or the applicable law. The first “wave” occurred in the 1990s. Prominent examples are the Special Panels for Serious Crimes in East Timor, the former UNMIK Panels in Kosovo, the War Crimes Chamber in the State Court of Bosnia and Herzegovina, or the Extraordinary Chambers in the Courts of Cambodia.

In recent years, hybridity has seen a revival. The Central African Republic adopted a law which foresees the creation of a special Criminal Court. It is the first special court that complements ICC action in a situation country. Senegal and the African Union created the Extraordinary African Chambers in Senegal, which prosecuted former President Hissène Habré. This was the first universal jurisdiction case to proceed to trial in Africa. The Colombian peace deal with the FARC foresees a Special Jurisdiction for Peace.

Finally, the fourth and yet most underdeveloped model, is the turn to regional courts. Regional criminal enforcement is a natural complement to international and domestic jurisdiction. The most prominent example is the Malabo Protocol in the African context, which combines jurisdiction over core crimes with certain transnational offences.

International criminal justice thus appears in 4D today: domestic, international, hybrid and regional.

II. New hybridity: Variations on the theme

How do the Mechanism and the Kosovo Specialist Chambers fit in this picture? Both institutions confirm the trend towards “hybridity”. They show that there is a need for hybrid mechanisms even after the coming into being of the ICC. Hybridity offers a number of attractions, since it is flexible enough to accommodate divergent political interests and other points of divide (e.g., budgetary concerns). But it also poses a number of challenges and concerns.

  1. MICT

Let us start with the Mechanism. The Mechanism is a variation of the second model, namely the international court model.

The Mechanism is based on the idea that sustainable justice requires ongoing engagement after the closure of tribunals. International justice does not simply stop with the closure of cases. There is follow-up work that cannot simply be delegated to a domestic system. For instance, entrusting review of judgments to different national jurisdictions might lead to incoherent approaches and standards.

Initially, it was discussed whether the ICC as permanent court might serve as a forum to deal with follow-up issues of the ad hoc tribunals. But this would have created operational difficulties, due to independence of the ICC from the UN system and differences in the applicable law. The creation of a separate specialized body avoids these pitfalls.

There is one institutional precedent. The Special Court for Sierra Leone was followed up by a successor mechanism established by the UN and Sierra Leone: The Residual Special Court for Sierra Leone. It deals with witness protection, supervision of sentences, and management of archives. This Court is perhaps the closest precedent of the Mechanism.

The Mechanism differs from the Sierra Leonean model. Its functions extend beyond classical residual functions. It combines residual functions with genuine ad hoc functions that relate to the completion of the work of the two ad hoc tribunals, namely tracing of remaining ICTR fugitives, hearing remaining appeals, holding re-trials or conducting contempt cases.

The term “mechanism” is a clear understatement. Legally, the Mechanism is not simply an annex of the ad hoc tribunals, but a successor court of its own, established by Security Council Resolution 1996 (2010). It has its own Statute, its own Rules of Procedure and Evidence, and its own Headquarters Agreement with the host State. It is thus to some extent, as Judge Meron rightly called it, a “new experiment in international criminal justice”.

The Mechanism navigates between two poles: continuation of the ad hoc tribunals, and space for innovation. SC Resolution 1996 mandates the Mechanism to “continue” the jurisdiction of the ICTY and the ICTR. As aptly noted by Gabrielle McIntyre, the Resolution does not spell out what value the Mechanism should attach to jurisprudence of the tribunals. There is no binding rule of precedent. But considerations of fairness towards defendant require attention to the equal application of judicial standards. In its first decision (Munyarugarama v. Prosecutor), the Appeals Chamber of the Mechanism committed itself to “normative continuity”, namely “to interpret its Statute and Rules in a manner consistent with the jurisprudence of the ICTR and ICTY.”

At the same time, there is space to take into account lessons learned. The ad hoc tribunals have been a laboratory of procedural innovation. In 2015, the ICC adopted a new practice manual to facilitate pre-trial and trial practice. The MICT provides an opportunity to take into experiences from past decades. For instance, international criminal justice struggles with the large number of cases for contempt of court. The use of a single judge, as contemplated by the Mechanism, might set an important precedent, also for practice of other courts and tribunals.

The Mechanism also promotes new approaches regarding working methods and payment of Judges. Judges typically work remotely, unless they are called to the seat of the Mechanism. They are remunerated only for those days on which they exercise their functions. This provides significant authority to the President.

There are strong pressures to make procedures even more economical and efficient. But greater efficiency does not always entail greater effectiveness. It is crucial to retain a high quality of justice, including space for meaningful deliberation among Judges. A “lean” Court management model may be efficient in terms of resources, but lack effectiveness in terms of fairness or quality of the justice process. “Lean” justice should thus not turn into “cheap justice’.

  1. Kosovo Specialist Chambers

This leads me to the newest addition to the institutional landscape, the Kosovo Specialist Chambers. The Kosovo Specialist Chambers are vested with the jurisdiction to investigate and prosecute transnational and international crimes that have been left aside by the ICTY or preceding EULEX panels in Kosovo, including illicit trafficking in human organs. Legally, they are a new variation of the third model, namely mixed domestic–international courts. They encompass two entities, the “Specialist Chambers of Kosovo”, and “Specialist Prosecutor’s Office”. They were established by a national law, Law No.05/L-053, following an an exchange of letters between the President of Kosovo and the High Representative of the European Union. This construction was endorsed by a ruling of the Constitutional Court of Kosovo. It is special in different ways.

First, the Specialist Chambers are a blend between regional and domestic approaches. They are formally part of the legal order of Kosovo. But the power to appoint staff has been delegated to the EU as “Appointing Authority” (Art. 28 of Law No.05/L-53) . In return, the budget is paid by the EU and other contributors. As noted in academic commentary, they are thus to some extent mixed domestic regional Chambers.

Second, the special nature relates not only to internationalization, but physical relocation. Previous mixed domestic-international entities were typically located in the domestic country. In this case, they are externalized to The Hague. This is a new construction. It might be partly explained by security considerations, such as potential threats to judges and prosecutors.

Third, as correctly noted by Sarah Williams, one of the most distinct features of the Kosovo approach is that the law on the Specialist Chambers foresees are more or less exact mirroring of domestic justice institutions, not only on one level, but all levels of the Court system: The Basic Court, the Court of Appeals, the Supreme Court and the Constitutional Court. This contrasts with the idea of mixing international and domestic structures which is typical of hybrid mechanisms. This approach was chosen to protect the Specialist Chambers from control by the Constitutional Court of Kosovo or other domestic entities. One risk of this approach is that this may lead to the development of parallel international structures.

Fourth, Chambers are composed entirely of international, rather than domestic Judges (Art. 26 Law No.05/L-53). In terms of composition and personnel, they are thus international, rather than domestic. The absence of domestic judges avoids inequalities between judges. But it might also entail downsides in terms of diversity of expertise and local perception.

Fifth, the jurisdiction is framed in a unique way. It is essentially focused on one side of the conflict, namely the KLA. This is novel in the sense that it focuses on accountability of the “victors” of the conflict, rather than the “vanquished’.

Finally, the provisions relating to the applicable law are highly complex, due to the broad range of legal sources applicable in the legal order of Kosovo.

Not a conclusion

Where does this leave us? The two institutions will undoubtedly set new footprints. But there is a sense of irony in their development. Both institutions were established to deal with omissions of the past. Efforts were made to downplay their formal nature as tribunals. Ultimately, it was the technique of hybridity that made their creation possible. Over time, these mechanisms are likely to develop a life of their own. The Mechanism might become a specialized court to deal with residual and other ad hoc functions.  The Kosovo Specialist Chambers might provide a gateway for greater recognition of Kosovo in international relations. The lessons is thus: Tribunals are dead, long live tribunals.

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3 Responses

  1. Roger O'Keefe

    Dear Carsten

    Many thanks for your post on tribunals, which I – and I am sure readers – enjoyed. I particularly liked how you were careful to stress that, formally, a tribunal or court must be formally rooted in either the international or a domestic legal system, however we might bandy about the term ‘hybrid’, etc, an indeed ‘regional’. This is something that, as an avowed formalist, I think calls for constant reminder, even if the practical upshot is far less significant than many people seem to think.

    I hope I might be granted the indulgence of quoting at length from my book, International Criminal Law (OUP 2015), which I do simply to sav myself the trouble of writing from scratch a very long post only to say what I say in the book. I do this not to advertise the book (which is nonetheless available for a modestly princely sum – paperback available soonish – where all good books are sold, as well on OSAIL: buy it for Christmas!) but to attempt to counter what to my mind is an increasingly confused tendency to think that, in formal terms, as distinct from the merely descriptive, there is a multiplicity of types of court and tribunal.

    All quotes are from chapter 3 (‘The Types of Criminal Court’). All footnotes have been omitted.

    First a brief terminological note:

    “3.3 Collective reference is commonly made to ‘international criminal courts and tribunals’, rather than just to ‘international criminal courts’ or to ‘international criminal tribunals’. This is for the straightforward reason that two of the international criminal adjudicative bodies that have existed or do exist have been or are labelled courts, while the rest have been or are labelled tribunals. The conjunctive formulation, while unobjectionable in legal terms, is cumbersome. Since the difference between a ‘court’ and a ‘tribunal’ is of no international legal significance, and since a judicial body is more commonly referred to in ordinary usage as a ‘court’, this book uses ‘international criminal courts’ as the generic term for those international judicial bodies that adjudicate upon criminal matters. Similarly, generic reference is made throughout the book to ‘municipal criminal courts’, rather than to ‘municipal criminal courts and tribunals’. Although the distinction between courts and tribunals may be of constitutional significance in some municipal legal systems, it is irrelevant for the purposes of international law, and a more concise term is again preferable from the point of view of convenience.”

    Now to substance, on the types of criminal court:

    “3.6 As a formal juridical matter, there exist only two species of criminal court, namely international criminal courts and municipal [or, synonymously, ‘domestic’ or ‘national’] criminal courts. In strict juridical terms, there is no third species of criminal court, variously labelled ‘hybrid’, ‘mixed’, ‘internationalized’, or the like. This is not to say that these adjectives are devoid of value. On the contrary, they may usefully describe the judicial composition, jurisdiction ratione materiae, and applicable law of a criminal court, whether international or municipal. But they do no more than this. They do not denote a formal legal category of court. If anything, they obscure the formal legal character of any court referred to.

    3.7 The composition of the court, its jurisdiction ratione materiae, and its applicable law have no bearing on its formal legal character. An international criminal court could be staffed by judges, prosecutors, and administrative personnel of a single nationality appointed by the state of nationality; its jurisdiction ratione materiae could comprise exclusively municipal crimes; and it could apply exclusively municipal law. None of this would make it, in strict juridical terms, a ‘hybrid’ or ‘mixed’ criminal court. Conversely, a municipal criminal court could be staffed exclusively by foreign judges, prosecutors, and administrative personnel appointed by foreign states or by an international organization; its jurisdiction ratione materiae could comprise exclusively international crimes; and it could apply exclusively international law. None of this would make it, in strict juridical terms, a ‘hybrid’, ‘mixed’, or ‘internationalized’ criminal court. In the final analysis, whatever its descriptive admixture of ‘international’ and ‘municipal’ elements (which is usually one of any number of gradations between the foregoing poles), a criminal court must formally be either international or municipal.

    […]

    3.8 The juridical character of a criminal court as either international or municipal is a function of the legal order on which the court formally depends for its existence and competence. If the court’s establishment and judicial powers derive without formal interposition of municipal law from an international legal instrument or act, be it a treaty, a resolution, decision, regulation, proclamation, etc of an organ of an international organization or of a joint organ of two or more states, a joint declaration by two or more states, or the like, the court is international. Conversely, if the court’s establishment and judicial powers derive without formal interposition of international law from a municipal legal instrument or act, be it primary legislation, subordinate legislation, executive decree, or the like, the court is municipal.

    3.9 Just as a criminal court’s composition, jurisdiction ratione materiae, and applicable law cannot transform it, in strict juridical terms, into a third category of criminal court, viz a ‘hybrid’ or ‘mixed’ court, so too are they irrelevant to whether the court is international or municipal. The judges of an international criminal court need not come from more than one state or be appointed by more than one state or by an international body, and an international criminal court can be vested with subject-matter jurisdiction over municipal crimes and can apply municipal law. Conversely, a municipal criminal court can be composed of foreign judges appointed by foreign states or by an international body, it can be vested with jurisdiction over international crimes, and it can apply international law. It all depends on what the court’s constituent instrument provides.

    […]

    3.10 An international criminal court is a criminal court that formally depends for its existence and competence on international law. In other words, an international criminal court is a criminal court whose establishment and judicial powers derive without formal interposition of municipal law from an international legal instrument or act. This will usually mean that the court’s constituent instrument — its statute, charter, or the like — is itself an international legal instrument, be it a treaty or annex thereto, an annex to a resolution of the United Nations Security Council, a proclamation or the like by a joint organ of two or more states, or some other international legal instrument. Alternatively, it may mean that the court’s constituent instrument takes the form of or is found in some other document on which an international legal instrument or act has conferred the force of international law by means of express incorporation, adoption, or the like. Indeed, it may mean that the court’s constituent instrument takes the form of a municipal legal instrument, whether primary or subordinate legislation, executive decree, etc, on which the force of international law has been conferred by an international legal instrument or act.

    […]

    3.28 A municipal criminal court is a criminal court that formally depends for its existence and competence on municipal law. In other words, a municipal criminal court is a criminal court whose establishment and judicial powers derive without formal interposition of international law from a municipal legal instrument or act. This will usually mean that the court’s constituent instrument is itself a municipal legal instrument, be it primary legislation, subordinate legislation, executive decree, or the like. Alternatively, it may mean that the court’s constituent instrument takes the form of an international legal instrument on which a municipal legal instrument or act has conferred the force of municipal law by means of express ratification, incorporation, or the like. In rare cases it may equally mean that the court’s constituent instrument takes the form of an international legal instrument on which the force of municipal law has been conferred by an international legal instrument or act.

    […]

    3.36 The technical juridical distinction between an international criminal court and a municipal criminal court says nothing about the range of descriptive varieties of each formal category of court. The precise international or municipal legal means by which the court is established and empowered, the composition and method of appointment of its bench and in some cases prosecution, its jurisdiction ratione materiae, its applicable law, its rules of procedure and evidence, the domestic or foreign location of its seat, its funding arrangements, the involvement or otherwise in its workings of an international organization and whether it is permanent or ad hoc represent just some of the variables that result in as many practical differences among international criminal courts and municipal criminal courts respectively as between the two categories.

    […]

    3.37 The significance for the purposes of international law of the distinction between international and municipal criminal courts can be overstated. The distinction is of some international legal import, but this is little more than formal.

    […]

    3.46 What is ultimately of greater legal significance than the distinction between international and municipal criminal courts are the differences as to means of establishment and empowerment among international criminal courts.

    […]

    3.49 […] In practical terms, furthermore, far more important are the descriptive differences as to jurisdiction, applicable law, rules of procedure and evidence, composition of the bench and its method of appointment, and so on, among international criminal courts and municipal criminal courts respectively.”

    Anyway, thanks again, Carsten, and thanks to everyone for their patience.

    Roger

  2. Roger O'Keefe

    PS Apologies for the double use of “formally’/”formal” in the second sentence. Too much caffeine.

  3. Dapo Akande

    Hi Carsten,

    Many thanks for the post. I was wondering in what sense do you take the MICT to be a hybrid tribunal? I agree with Roger about how a tribunal is either international or domestic as a formal matter. But, as he notes, one can use the term in a descriptive sense. However, even then- and I am probably missing something – I am not sure how the MICT is hybrid. Is there a domestic aspect to the MICT in terms of personnel, applicable law, location etc?

    Dapo