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. Read the rest of this entry…