Editor’s Note: We asked editors Beth Van Schaack and Alex Whiting to do a roundup of the top international criminal justice stories from 2015 and what readers should keep an eye on in 2016. This is Beth’s half of the list. You can find Alex’s here.
The Continuing Utility of Hybrid Justice. As Alex discussed, although the ICC is now fully operational, its jurisdiction remains incomplete and its resources limited, so other justice mechanisms may be required. The Court is plagued by challenges to its legitimacy, erratic state cooperation, and persistent perceptions of inefficacy and inefficiency. Originally envisioned as a standing institution that would obviate the need for new ad hoc courts, it is now clear that the ICC cannot handle all of the atrocity situations ravaging our planet. As such, there is an enduring need for the international community to create, enable, and support additional accountability mechanisms to respond to the commission of international crimes when the political will for an ICC referral is lacking, the ICC is inappropriate or foreclosed for whatever reason, or only a fraction of the abuses or perpetrators in question are before the ICC. Responding to this call, the international community in 2015 considered new hybrid accountability mechanisms for a range of historical and current atrocity situations, including Syria, the Central African Republic (CAR), the Democratic Republic of Congo (DRC), Colombia, Sri Lanka, Chad, Kosovo, and even the July 2014 downing of Malaysian Air Flight 17 over rebel-controlled Ukraine.
Hybrid justice institutions — which combine international and domestic elements in staffing, operative law, structure, financing, and rules of procedure — work to bridge the gap between purely domestic proceedings and the ICC. Indeed, the Special Criminal Court(SCC) for CAR, which is unique in that it was established by domestic legislation rather than an international instrument, will operate in parallel with the ICC. The SCC and ICC may in fact eventually exercise jurisdiction over the same crime base following the ICC Prosecutor’s decision to open a second investigation into CAR concerning crimes committed since 2012 in connection with the Séléka rebellion. In the new year — and assuming the international community provides the necessary financial, diplomatic, and other support — we can expect to see this institution begin to come online given that the necessary legal framework and venue are in place.
Another notable example of hybrid justice is found in the Extraordinary African Chambers(EAC) in Senegal, which by virtue of an agreement with the African Union are prosecuting former Chadian head of state Hissène Habré and several confederates for crimes committed in neighboring Chad. The Habré proceedings began in July 2015, although trial was immediately delayed when Habré muzzled his lawyers and defense counsel had to be assigned to him. The Chambers have already heard harrowing testimony about a range of abuses committed during Habré’s regime. These include allegations of rape and sexual slavery that implicate Habré himself, although no formal sexual violence charges have been leveled against him. A group of lawyers, including yours truly, has urged the Chambers to consider adding sexual violence charges in light of the facts in the record and the statutory framework. This is the first hybrid institution to exercise a form ofinternational universal jurisdiction over defendants who have no link at all to the forum state. The African Union with support of opposition leader Riek Machar has also discussed the possibility of a hybrid institution devoted to South Sudan, where abuses continue unabated.
Given the SCC, the EAC, and other related efforts, it is now possible to devise a taxonomy of models and a “menu” of hybridity elements that can be mixed and matched as new institutions are contemplated, as I discuss more fully here.
Read the full post at Just Security.