‘Hybrid tribunals are excellent in theory, but invariably disappointing in practice’ – Discuss
Introduction
In this essay I am going to critically explore the theoretical advantages and disadvantages of using the transitional justice mechanism of the hybrid court system. In theory, the strength of using the hybrid model lies in its ability to draw upon the strengths of international justice as well as the benefits of using local prosecution. The hybrid model on one hand, can harness the legitimacy and authority that international legal institutions ensure by providing an impartial system to try the perpetrators. On the other hand, the hybrid model can be implemented to utilise the local expertise available, providing a connection with the local people and re-establishing the domestic judicial system as a training ground for rule of law values. Only through embedding these values into local justice systems, and broadening the mandates to focus on local justice reform can hybrid courts potentially anchor justice mechanisms into local culture, thus genuinely altering cycles of impunity by changing local judicial institutions in a sustainable way. The hybrid model can in theory go beyond providing retributive justice by fostering a culture of accountability which is why scholars suggest that it, “holds a good deal of promise to actually offering an approach that may address the concerns that arise from using a purely international or purely local justice system”. However, throughout the course of this essay similarly convincing arguments will be made to highlight where the use of makeshift configurations of the original hybrid model have only served to make it highly vulnerable to avoidable failures. By the conclusion of this essay, after looking critically at the theory and implementation of the hybrid system, it will be clear if hybrid tribunals succeed in striking a balance between international accountability and domestic sovereignty or can be fittingly summarised as, “...excellent in theory, but invariably disappointing in practice”.
Evolution of transitional justice mechanisms to the Hybrid Model
Crimes which occur within the borders of a domestic state can attract international jurisdiction if the crimes committed amount to the status of being an international crime. There is no agreed definition of what is an international crime, but generally they would include: genocide, crimes of aggression, war crimes and crimes against humanity. What is a common theme throughout these crimes is their corrosive effect on the international society and their particularly appalling nature whilst also violating universal human rights. There is a severity which is associated when there is a violation of the ‘just cogens’ norms, “higher law” that no country is above because of their universal jurisdiction. Due to this, a breach of these norms often results in an external review to establish whether the atrocity warrants universal sanction. Problems emerge though when prosecuting international crimes because no universally accepted permanent institutional structure to implement international criminal law exists. The domestic judiciaries in post-conflict states are in most cases devastated; tainted with corruption and illegitimacy and as a result cannot adequately administer justice for the victims of the conflict.
The Nuremburg trials had served as a pioneer for international jurisdiction by being the first international criminal body to assume the authority to universally condemn and subsequently prosecute on the basis of breaching international laws. However, due to the taint of ‘Victor’s justice’ the use of the Nuremburg trials as an instructional precedent is limited. The second generation mechanisms suffered from runaway costs, flaws in management and breakdowns in communication which created fatal donor fatigue placing question marks over the effectiveness of international criminal justice. During the
