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

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’.

2. 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.