This guest post is written by Heather Ryan, who is currently monitoring the Extraordinary Chambers in the Courts of Cambodia (ECCC) for compliance with international standards and best practices. The views expressed below do not necessarily reflect the views of the Open Society Justice Initiative.
Efforts are underway to establish hybrid tribunals to address impunity for mass atrocities and violations of international criminal law in both Sri Lanka and the Central African Republic. The design of these tribunals must be guided by the unique circumstances of the conflicts that gave rise to them and to the political and legal situations in which they will operate. But it is also important that these courts if they are established—which is not certain at this point—incorporate lessons learned by other hybrid tribunals that have struggled to succeed in addressing patterns of impunity.
Working with the Open Society Justice Initiative, I have been monitoring the Extraordinary Chambers in the Courts in Cambodia (ECCC) since its founding in 2006. The ECCC is a hybrid tribunal established to prosecute senior leaders and those most responsible for crimes committed during the Khmer Rouge regime in Cambodia between 1975 and 1979. The court results from an agreement between the United Nations and the government of Cambodia. While technically embedded in the domestic legal system, it operates as a hybrid international tribunal with international and Cambodian officials working together as prosecutors, judges, and in each of the other capacities necessary to operate a court designed to address complicated international crimes and meet international standards for fair trials.
The ECCC is not a model for other hybrid tribunals to replicate. It has been plagued by political interference, inefficiency, and financial difficulties. Yet, both because of and in spite of these problems, those involved in developing hybrid tribunals in Sri Lanka, Central Africa Republic, or elsewhere should not ignore the host of lessons that can be taken from the experience of the ECCC.
This is the first of a three-part series of posts on lessons that can be taken from the ECCC experience in the effort to develop successful hybrid tribunals in Sri Lanka and the Central Africa Republic. This first post address the role of hybrid tribunals as a tool for transitional justice and how they relate to the International Criminal Court (ICC), and also briefly explains the context of the proposed hybrid tribunals. The second and third posts will outline lessons from the ECCC that should be carefully considered in designing and implementing tribunals in Sri Lanka and the Central African Republic.
Hybrid Tribunals and the International Criminal Court
In addressing justice for violations of international criminal law, hybrid courts are distinguished from international courts such as the ICC by their mixed composition of international and national personnel, jurisdiction, and law, and the fact that they generally operate within the jurisdiction where the crimes occurred. Hybrid tribunals have been considered advantageous over purely domestic models where either the capacity to hold sophisticated trials involving international law and international standards is in doubt and/or fears exist as to bias or lack of independence in the domestic legal system.
By definition, hybrid tribunals take place in less than ideal circumstances for ensuring independent and credible accountability. Yet they hold the promise of strengthening the domestic legal and judicial system through capacity building and demonstrating procedures that meet international standards. They can promote local confidence, involvement, and reconciliation by being embedded in the domestic system. Hybrid courts are intended to operate with greater efficiency and lower cost than purely international courts. While not all hybrid courts have met these goals, they are still important when considering and designing new hybrid courts.
When the ICC was established, it was uncertain whether hybrid tribunals would continue to play a role in international accountability. The ICC incorporates the concept of “complementarity,” which favours domestic prosecutions of atrocity crimes and provides for ICC jurisdiction only when a domestic jurisdiction is unwilling or unable to carry out effective prosecutions of grave crimes. Complementarity encourages domestic justice systems to address impunity for atrocity crimes by developing the legal structures and capacity to deal with them locally. However, this structure has not eliminated the interest in hybrid tribunals, which, because of the flexibility in how they can be structured, continue to be proposed to meet demands for justice in a variety of diverse circumstances where international crimes have occurred. They can help bridge the gap between purely domestic tribunals and the purely international ICC.
The ICC is an essential option to address impunity for international crimes in some circumstances—situations of ongoing violence or governments unwilling to seek justice for atrocities. Yet, the ICC cannot or chooses not to address impunity in many situations where international crimes have been committed, often because of lack of jurisdiction, decisions about the gravity of crimes, or the allocation of scarce resources. Purely domestic prosecutions, favoured by the ICC concept of complementarity, may not be an effective approach under all circumstances where the ICC does not act.
Hybrid tribunals may also address the broader justice needs of countries affected by atrocity crimes, even when the ICC plays a role. Because the ICC can only address a small number of perpetrators in an atrocity situation, there may often be a role for hybrid courts to try lower-level perpetrators in a situation where the ICC tries higher-level actors.
Recognizing the limitations of the ICC and domestic tribunals in fully addressing impunity for international crimes, hybrid tribunals—either independent of or operating alongside the ICC—hold promise for accountability for international crimes in some circumstances. Hybrid tribunals are currently under discussion in Sri Lanka, which is not a party to the ICC, and in the Central African Republic, where two submissions to the ICC have been made by the government and accepted by the ICC prosecutor.
Sri Lanka Hybrid Tribunal
In September 2015, the UN Office of the High Commissioner for Human Rights (OHCHR) reported on its investigation of abuses committed in Sri Lanka during the civil conflict between 2002 and 2011. The report details a “horrific level of violations and abuses” by government forces, pro-government paramilitaries and the separatist Tamil Tigers (LTTE). These include unlawful killings and deprivations of liberty, enforced disappearances, torture, sexual and gender-based violence, forced abduction, recruitment of children, and denial of humanitarian assistance. Emphasizing the sheer number of allegations, their gravity, recurrence, and consistent patterns of conduct, the High Commissioner found reasonable grounds to believe that all parties committed international crimes during the conflict.
In evaluating possible accountability mechanisms, the report highlighted the total failure of a series of domestic efforts to credibly investigate, establish the truth, ensure accountability, or provide redress to victims of the serious human rights violations. The population is deeply suspicious of domestic accountability attempts as a result. In addition, the need for fundamental reforms of the security sector and justice system―including a full-fledged vetting process to remove from office security forces personnel and public officials suspected of human rights violations―and the lack of proven witness protection capacity raise concerns about the effectiveness of a fully domestic accountability process. Finally, while recognizing positive signs of support from President Maithripala Sirisena, the report raises concerns about the depth of political will in the government for credible accountability processes.
The High Commissioner thus concluded that achieving accountability in Sri Lanka will require more than domestic mechanisms. He recommended a hybrid special court “integrating international judges, prosecutors, lawyers and investigators, mandated to try war crimes and crimes against humanity, with its own independent investigative and prosecuting organ, defense office and witness and victims protection program.” Given the politicization and highly polarized environment in Sri Lanka, he sees such a court as necessary to give confidence to all Sri Lankans, in particular, the victims, that the process is independent and impartial.
Central African Republic Tribunal
For decades political, ethnic, and sectarian clashes have disrupted life in CAR.
The Central African Republic is one of the poorest countries in the world, ranking 185th (out of 187) on the United Nations Human Development Index, compounding the difficulties created by the conflict. Currently, violence between the mainly Muslim Séléka alliance and the mostly Christian Anti-Balaka militia continues to threaten progress towards a peaceful and just society. The UN estimates that in the recent years of civil war nearly 440,000 people have been displaced inside the country and 190,000 have sought asylum outside of the country. Minimum death toll estimates since 2013 exceed 6,000. A transitional government was established in January 2014 with Catherine Samba-Panza, who is not aligned with parties to the conflict, as interim president.
In April 2014, the UN Security Council established a peacekeeping force, the United Nations Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA), with a mandate that included deployment of 10,000 troops and the protection of civilians.
In January 2015, an international commission of inquiry appointed by the UN Security Council, has found that crimes against humanity were widely committed by all parties to the ongoing conflict, called for the establishment of a fully international tribunal to investigate and prosecute perpetrators of these crimes. Philip Alston, one of the commissioners, noted that government officials have a well-founded expectation of impunity that hinders ending the violence and that national judges do not have sufficient independence to conduct fair trials of such crimes.
In April 2015 the interim government of the Central African Republic passed a law to establish a Special Criminal Court (SCC) with the aim of prosecuting atrocities committed in the country since 2003. The legislation provides for 27 judges: 14 from the Central African Republic (including the chief judge of the court and of each chamber) and 13 judges from outside the Central African Republic. The prosecutor will be international. The jurisdiction of the court will include serious international crimes committed in the territory of the Central African Republic, including war crimes, crimes against humanity, and genocide. The SCC is a temporary court embedded within the national justice system and designed to apply Central African Republic law and procedure.
It is significant that the SCC is established specifically to work alongside the ICC. The ICC prosecutor has accepted two submissions by the Central African Republic requesting investigations—the first concerning violence from 2002 and the second concerning violence since 2012.
Although a creature of domestic law, the SCC is intended to work in conjunction with MINUSCA because international funding, expertise, and other assistance will be essential if the court is to succeed. In April 2015, the United Nations Security Council renewed the mandate of MINUSCA for an additional year and tasked it with supporting the work of the SCC, in particular in the areas of investigations, arrests, detention, forensic analysis, evidence collection and storage, recruitment and selection of personnel, the establishment of a legal aid system, and security for judges, victims, and witnesses—all while supporting local ownership of justice processes and close proximity to victims.
The international participation in the court is expected to contribute to building domestic judicial capacity, and to help protect judicial officials from political and military interference. Funding will entirely come from voluntary contributions by donors.
This post (the second in a series of three) will focus on lessons that can be drawn from the hybrid tribunal established in Cambodia―known as the Extraordinary Chambers of the Courts in Cambodia (ECCC)―to inform proposed hybrid tribunals in Sri Lanka and Central Africa Republic (CAR).
When the ECCC was established in 2006, Cambodia faced challenges regarding its legal capacity, judicial independence, public legitimacy, and domestic political will. Similar challenges are faced in Sri Lanka and CAR. This post is not intended as a roadmap for the structure of Sri Lanka or CAR tribunals, but rather outlines concepts gleaned from the experience in Cambodia that may be useful in developing successful hybrid tribunals in CAR and Sri Lanka.
In both Sri Lanka and CAR, recommendations to establish hybrid tribunals represent important attempts to promote essential accountability for atrocity crimes. Yet in both circumstances, there is a tension between the desire for justice that is close to the victims and the domestic jurisdiction and the recognition that the capacity, security, independence, and political will for thorough accountability is tenuous. This tension is characteristic of hybrid tribunals, invariably established in post-conflict situations, and a reason that the challenges inherent in establishing hybrid tribunals are enormous. If great care is not taken in planning hybrid courts, they can easily fail and thus contribute to ongoing impunity in places where violence has already damaged the pursuit of justice.
The record of the ECCC has shown that failure to adequately acknowledge and plan for a range of predictable challenges can significantly diminish a court’s ability to deliver justice to those it intends to serve. No two hybrid tribunals can be the same, as each operates in unique circumstances; however, we undermine our ability to bring justice to the victims of atrocity crimes if we do not carefully evaluate lessons learned from other tribunals.
This posting does not seek to answer the question of whether a hybrid tribunal is an appropriate justice mechanism in CAR or Sri Lanka because preliminary decisions in that regard have already been made. Nonetheless, there are certain pre-conditions that should be met in Sri Lanka and CAR if international participation is committed to the establishment of the courts. These conditions arise from the particular situations in Sri Lanka and CAR and cannot be addressed in detail in this blog. They include:
Security sector reform and vetting. This is a minimum measure if the courts are to be able to protect officials and witnesses.
Incorporation into domestic law of an adequate legal framework to try crimes of international complexity.
Acceptable legislation eliminating amnesty and immunity from prosecution applicable to persons on all sides of the conflict.
Evidence of political commitment from all key parties, including donors and the UN, to support a process that meets international fair trial standards for the life of the court.
The hybrid tribunal proposed for CAR is intended to operate alongside investigations by the ICC into crimes arising from the same conflict. While it is understood that the ICC’s investigation of “most responsible” perpetrators has priority over CAR investigations, it is not clear how or if communication, the division of responsibilities, or sharing of information or resources will be handled. There could be important efficiencies achieved by a cooperative relationship between the two institutions. The execution of arrest warrants, security for the courts, investigative assistance, training and capacity building, and witness protection programs might be effectively consolidated in a manner that could prove a model of cooperation that benefits both courts. However, this result is unlikely to happen without considerable efforts by the special court, the ICC, and other international authorities. Without streamlined procedures, cooperation might easily falter and could conceivably degenerate to unhelpful competition.
Lessons from the ECCC Regarding Needs of the Hybrid Tribunals in Sri Lanka and CAR:
Domestic Political Will
Sustained domestic political commitment to hold fair trials that are marked by judicial independence and compliance with international standards is a threshold criterion for a successful hybrid tribunal. The ECCC experience has shown that, regardless of the “protections” built into a hybrid system, it cannot operate with judicial independence if the country’s chief executive seeks to influence domestic judicial officials. Judicial independence from political or executive control remains a problem in Sri Lanka and CAR domestic systems. Statements by the executive in support of the independence of any tribunal are helpful but insufficient to ensure a successful process. Government officials must remain vigilant and committed in supporting the reality and the appearance of the independence of judicial officials.
In countries without a record of judicial independence, the structure of any hybrid tribunal must include the majority international control of investigative, prosecutorial, and judicial decision-making. The bizarre system put in place at the ECCC provides for Cambodian majorities in court chambers but then tries to balance the system with presumptions, “supermajority voting,” and other complicated and non-transparent procedures. This has proved an ineffective substitute for international control as a protection against political interference.
In Sri Lanka, where no decision has been made as to the composition of the judicial chambers, the court’s designers should look honestly at Sri Lanka’s track record for judicial independence and require a majority of international judges, free of domestic control, in all chambers. In CAR, where the SSC statute already provides for a majority of domestic judges, consideration must be given to a revision to reverse the majority—or other substantive protections to ensure that political interference in judicial decision-making does not undermine the basic fairness and credibility of the court.
Securing the commitments to adequately fund the tribunals is necessary for a stable and independent court. Reliance on voluntary funding from international donors that must be secured on a yearly basis is a grossly inefficient and dangerous funding strategy. It carries the risk that functions essential to fair trials and an effective tribunal will be sacrificed because of lack of funding.
In addition, secure funding for outreach is also vital if the court is to be relevant to the population. Voluntary funding by donor states, subject to renewal on a yearly basis, continues to undermine the effectiveness of the ECCC in essential areas such as outreach, victim and witness support, and translation services. In addition, it has led to several significant time periods where Cambodian staff worked unpaid.
Hybrid tribunals in both Sri Lanka and CAR will rely largely on international funding. Realistic budgets and time frames must be developed for the courts and sustained commitments should be secured from the UN or other donors before the courts are established.
UN Commitment to Protect International Standards
An express commitment from the United Nations (and key states) to insist that international fair trial standards—including judicial independence—are honoured, and to take effective action to correct any failings in this regard, is essential to the success of hybrid tribunal. If the United Nations—or any other international party involved—is weak, timid, or ineffective in this regard, a credible tribunal is likely impossible. Such a commitment is particularly important in circumstances, as in Sri Lanka and CAR, where there is little public faith in judicial or other governmental institutions to operate within the bounds of the international standards. The UN’s lack such a commitment in Cambodia has led to the court’s credibility being diminished in the eyes of Cambodians and internationals alike.
A central reason for international participation in hybrid tribunals in Sri Lanka and CAR is the need safeguard international standards, particularly judicial independence. If the international participants are not willing to do so with uncompromising fidelity, the purpose of their participation fails. If international standards cannot be generally safeguarded at any point in the process, the international participants must be willing to cease involvement in the court.
Selection and Training of Judges and Court Staff
Politicized domestic control in the selection of Cambodian judges at the ECCC undermined the independence of the court and public confidence in its work. Political control of judicial decision-making is widespread in Cambodia and several of the judges selected by the government, in a process that mirrored the process for domestic courts, had public histories of highly questionable adherence to political instructions. Civil society attempts to have input into the selection process were ignored. Under such circumstances, the ECCC was never free of suspicions of political interference driven by current government interests.
In Sri Lanka and CAR, where political independence of the judiciary is of concern, merely grafting the domestic system onto a hybrid tribunal will perpetuate the very problem that the hybrid structure was designed to prevent. If public confidence in the court is to be nurtured, it must start with a judicial selection process designed to ensure independent jurists are selected. This may require international involvement in the selection process or specialized criteria or processes incorporated into the domestic system.
In addition to the judicial selection process, professional procedures for selecting staff at other levels must be instituted to ensure the capacity to efficiently perform the court’s work, to advance freedom from political interference, and to avoid the participation of persons involved in past human rights abuses. The failure to adequately detail such procedures at the ECCC lead to a corruption scandal in which it was revealed that staff were forced to agree to kick back a portion of their salary in order to be hired and maintain their position. This system did not ensure that the most qualified persons were hired and undermined morale and confidence in the court.
Ongoing training is essential to both the quality of a hybrid court’s work and the goal of building the capacity of domestic participants. Not all international staff at the ECCC had a significant background in internationalized criminal courts and many would have benefitted from ongoing training. Domestic staff are unlikely to have had any international experience and need ongoing training to develop a substantive capacity to assume leadership roles. Training programs can also have the important benefit of encouraging the joint exercise of responsibilities by domestic and international staff and officials. At the ECCC, unfortunate divisions between domestic and international staff developed in some sections of the court partially because of differences in staff training and capacity. Substantive joint training can build the confidence of domestic staff and the willingness of international staff to share responsibility.
Competent Defense Counsel. Procedures and funding for international defence counsel are essential to maintaining international standards in a flawed or under-developed domestic system. Such counsel must themselves be held to international standards of integrity and practice. The ECCC system of funding international defence counsel to work alongside domestic lawyers for the accused made a critical contribution to the fairness of trials and to capacity building for domestic lawyers who had no previous experience with the issues facing their clients.
This guest post is written by Heather Ryan, who is currently monitoring the ECCC for compliance with international standards and best practices. Part I of this three-part series is available here, and Part II is available here. The views expressed below do not necessarily reflect the views of the Open Society Justice Initiative.
This post will focus on lessons from the hybrid tribunal established in Cambodia, the Extraordinary Chambers of the Courts in Cambodia (ECCC), which may be applicable to establishing proposed hybrid tribunals in Sri Lanka and Central Africa Republic (CAR). In particular, it will look at how hybrid tribunals can ensure that the court remains relevant to and serves victims and affected communities.
Building Domestic Capacity. The building needed domestic legal capacity is viewed as a goal and an advantage of hybrid tribunals. The ECCC experience demonstrates that such capacity building can be elusive and does not happen without a commitment of resources, time, and leadership by both international and domestic officials. The goal of domestic capacity building should be embedded in the design of the court, including the allocation of funding and responsibility within the court. In addition, increased capacity in domestic legal institutions resulting from the presence of a hybrid tribune will only occur if there is strong domestic political will and domestic leadership to advance the national legal system.
Prosecution Strategy. In circumstances where domestic trust of the judicial system is limited, it is critical that the prosecutor develop and articulate a prosecution strategy that is objective and evenhanded so as to minimize the appearance of political manipulation or motivation in choices about who is targeted for prosecution. The strategy must incorporate and devote investigative expertise to address gender-based violence widely reported in both Sri Lanka and CAR.
In Cambodia, the prosecution was not aligned on a transparent strategy—largely because of political attempts to control the strategy—contributing to the perceptions of political interference surrounding the court. Likewise, professional investigation of gender-based violence was not instituted until victims advocacy groups brought relevant evidence to the court.
Security and Witness and Victim Protection. Because the ECCC began operations decades after the crimes in question were committed, physical security for witnesses and victims was not a major challenge for the court. This will not be the case in Sri Lanka or in CAR, where threats to witnesses are likely to be a serious problem. Security measures for court officials and witnesses must include adequate statutory protections as well as expertly trained professionals and a well-funded program to ensure all parties feel secure participating in the investigation and trial process. This system must be prioritized and in place when investigations begin.
Efficiency Considerations. Protracted negotiations between the UN, donors, and the government of Cambodia over details of the ECCC strained the patience of a population seeking an end to impunity. In addition, years-long investigations, trials, and appeal processes have greatly frustrated Cambodians and diminished their interest in the court. An unwieldy procedure of long dual investigations first by prosecutors, and then by investigating judges, before beginning long trials at the ECCC was counterproductive. The excessive length of the proceedings adds to the cost of the court and produces “donor fatigue.” It should not take years to “negotiate” a statute for a court. The procedures of the court must be arrived at quickly and focus on efficiency without sacrificing international standards.
Acknowledging that prosecuting atrocity crimes consistent with international standards is an inherently complex process, early efforts to streamline the process from investigation and prosecution strategy to trial and appeal procedures are essential so that the court does not cost so much and last so long that it strains the patience of the population it seeks to serve and undermines its own credibility.
Institutional Commitments to Outreach and Civil Society Involvement. The Cambodian experience vividly demonstrates that active outreach to the affected population is essential to the credibility of a hybrid tribunal. Further, it is clear that robust civil society participation is necessary for effective outreach. If a court is to have an impact with the public, it must make institutional commitments, including a dedication of funding and staff, to:
Ongoing outreach that effectively meets the population’s needs to follow and understand the work of the tribunal;
Supporting and funding civil society to provide monitoring, outreach, and victim education and related functions that assist the court in meeting its goals; and Promote transparency in all court operations to the maximum extent consistent with the need to protect the rights of the accused and to protect witnesses and victims.
Civil society work in support of these efforts was effective in Cambodia during a part of the life of the ECCC, but after the first trial funding for such activities became scarce for both the court and for civil society. Loss of public interest and support for the court resulted from this decline.
Reparations and Victim Participation. Tying reparations directly to criminal cases or liability may be problematic in mass crime cases such as exist in Sri Lanka and CAR. The number of persons affected by the violence who may be entitled to reparations is far greater than the number of persons who might be able to tie a reparation claim directly to the acts of an accused person before a hybrid tribunal. In addition, the accused are unlikely to have assets sufficient to fund meaningful reparations. A reparation system, independent of criminal justice proceedings, can be far more efficient and effective in serving the reparation rights of victims of international crimes. The ECCC’s system of awarding only “moral” reparations to the limited number of victims who are civil parties in the limited number of cases before the court has proven only minimally satisfactory to a few victims, and greatly frustrating to a huge number of victims who cannot or choose not to participate as civil parties.
On the other hand, the ECCC’s process for victims of crimes to participate and tell their stories to the court has proven an important advantage for victims and for the court’s ability to connect with a broad range of Cambodians. Although far from perfect, many of the aspects of the victim participation system developed at the ECCC could serve as examples for designing systems in Sri Lanka and CAR for victim participation.
Tribunal Must Be Part of Broader Transitional Justice Program. A hybrid court with significant international participation will likely have jurisdiction to try only a relatively small number of persons with leadership responsibility for international crimes. The criminal trials must focus primarily on the guilt of the accused rather than the needs of victims. Such a court cannot meet the many other important transitional justice needs of the population. This limitation should be acknowledged and a tribunal should be established alongside other transitional justice mechanisms including systems for reparations, vetting of military and security services, reconciliation dialogues and activities, psychological services, and community opportunities for discussion of history and truth-telling. The ECCC spurred some NGO activity in these areas in Cambodia that were highly regarded by those who were able to participate. However, without government and institutional commitment to carry out such programs, they suffer from grossly inadequate attention and funding.
The likely limited jurisdiction of any hybrid tribunal in Sri Lanka and CAR will not provide justice for lower-level actors who may be perceived by the population as some of the worst offenders. In Cambodia, the lack of political will for trials of lower-level perpetrators of atrocities is a cause of frustration to many Cambodians and contributes to a sense of ongoing impunity. This issue should be dealt with openly to avoid unmet expectations on the part of victims. The discussion should be initiated about the need for additional trials following the work of a hybrid tribunal with limited jurisdiction.
Consultation with Victims and Civil Society. Any hybrid tribunals in either Sri Lanka or CAR should seek to build public confidence in judicial accountability and public institutions, particularly for victims and affected populations. Active consultation and ongoing communication with affected populations and civil society organizations about their needs and expectations from the court is necessary if this goal is to be met. A court removed from the needs and expectations of the public will soon be regarded as irrelevant at best, and at worst will contribute to further cynicism about the prospect of ending impunity for atrocity crimes. In addition, local commitment and support for the court from civil society can greatly enhance its effectiveness. This can only be gained by including civil society in the planning process.