By Mark Kersten
There is no point denying it. The current global production of mass atrocities far outnumbers the tools and institutions able to respond to them. There is a far greater demand for, than supply of, international justice. While we often hear about the development, growth, and entrenchment of a “system” of international justice, as Stephen Rapp, the former U.S. Ambassador-at-Large for War Crimes Issues, recently remarked: “there isn’t a global system of justice, just some cases in The Hague and a few other places”.
Despite lofty rhetoric, the International Criminal Court (ICC) was never going to be a silver-bullet solution to creating a system of international justice. That’s not the institution's fault, but it is high time the international community look beyond the ICC towards establishing a network of institutions and organisations that can, together, cohere into such a system of global accountability. As one part of that, serious consideration should be given to the establishment of a permanent hybrid tribunal to prosecute mass atrocities.
In 1998, when states gathered to negotiate the Rome Statute of the International Criminal Court, the preponderant idea was to move away from an ad hoc approach of international criminal justice to a permanent system that would, eventually, become universal. And who knows, it might yet achieve that aim, but it won’t do so any time soon. While most states are members of the ICC, the most powerful countries — including Russia, China and the U.S., as well as the vast majority of the world’s population — lie outside of the Court’s jurisdiction. Moreover, if the lack of adequate funding of the ICC in combination with UN Security Council apathy and inaction are any indication, international interest in an effective and independent ICC is lukewarm — at best.
Thinking outside the box
Making matters worse, states that were once staunch supporters of the Court are, at the very least, re-thinking their allegiances. The ICC’s Office of the Prosecutor itself understands its limitations, publicly admitting that the institution has a “basic size”, meaning that it can only afford to open a small number of investigations and have a small number of ongoing trials in any given year moving forward. Some, like Elizabeth Evenson of Human Rights Watch and Jonathan O’Donahue of Amnesty International, have described
this situation as “the ICC’s capacity crisis”. But even if the ICC wasn’t facing such difficult times, the Court is inherently limited in what justice it can mete out. Even in an ideal world, the Court is structured in such a way that it would never be able prosecute all actors responsible for international crimes, and neither can states, particularly those emerging from violent political conflict. Some ‘outside the box’ thinking is needed.
The limits of what the ICC can achieve with regards to delivering justice and accountability point to the need to think beyond The Hague as the sole capital of international criminal justice. In the world of international criminal law, the ICC should not be, does not need to be and cannot be, the only game in town. Today, the widespread view that the Court should displace all ad hoc and hybrid tribunals seems as trite as it is misplaced. No tribunal type should be discarded entirely, certainly not in the name of the ICC, an institution that structurally and politically can only prosecute a tiny sliver of perpetrators.
New hybrid tribunals in the making?
As a result of the ICC’s limited reach, the incapacity of states to prosecute international crimes themselves, and the increasing expectation that justice be pursued in the wake of mass atrocities, we are witnessing the rehabilitation of other forms for tribunals, including the hybrid model. Last year, the Central African Republic (CAR) passed legislation establishing the Special Criminal Court. Early signs suggest that if any criminal tribunal is set up in South Sudan to deal with recent unrest, it also will take the form of a hybrid tribunal. While the push for a Security Council referral of Syria to the ICC has absorbed the lion’s share of global attention, there has also been persistent talk of the potential to create an ad hoc, possibly hybrid, court to deal with crimes perpetrated during the Syrian civil war. All of these tribunals, like their predecessors for Cambodia, Sierra Leone, Lebanon, etc., would be temporary. But what if there was a single institution which could host all of these hybrid courts?
The idea isn’t entirely new and has been bandied about before. Drawing on examples of mixed tribunals in international criminal justice, Erin Creegan, a lawyer in the U.S. Department of Justice, has cogently argued
for the establishment of a permanent hybrid tribunal to prosecute terrorism:
"Such a court could provide weaker states with international support and build capacity while giving them a role in achieving communal justice. Furthermore, it could help morally undermine unwilling states that express sympathy for the terrorists they harbour, while avoiding conflicts with the sovereign and effective criminal justice operations of other states.
"… [A] permanent court would mitigate time and money expenditures involved in perpetually establishing new courts with similar features… [A] single court would have economy, legitimacy, more deterrent value, consistent personnel, resources and guiding law. Generally speaking, a permanent court would prevent the international community from needing to reinvent the wheel each time a qualifying transnational crime is committed."
Devil lies in the details
Of course, the devil with such things will always reside in the details. Key issues would have to be negotiated. For one, the specific division of international and national law and staff could be held constant or determined via negotiations for each individual case. But such a permanent house for hybrid tribunals could yield tremendous benefits, including those noted in Creegan’s analysis. In addition, it would be a dependable locus of much-needed expertise and cross-fertilisation of experiences and knowledge between international and domestic actors. It could also potentially be an institution capable of meting out justice closer to where victims and survivors reside, whilst judges, lawyers and other relevant actors from fragile states, like CAR and South Sudan, could conduct their work in a secure and safe environment.
As it happens, there seems to be a perfect edifice ready to play host to such an institution — the premises of the recently closed down International Criminal Tribunal for Rwanda in Arusha, Tanzania, which now houses the UN’s Mechanism for International Criminal Tribunals. Other regions, if they deemed it appropriate and necessary, could create regional hubs of the tribunal to locate proceedings closer to home.
Setting up a permanent hybrid tribunal would require some consideration of how it would relate to the ICC and the principle of complementarity. But critically, such a tribunal would complement rather than compete with the ICC. In places like CAR, such a tribunal could host the Special Criminal Court and deal with those ‘excess perpetrators’ that aren’t senior enough to be indicted by the ICC. It could also house tribunals for states, like South Sudan, where there is zero appetite to have an ICC intervention.
There is a growing marketplace for war crimes investigations and prosecutions. This marketplace is not a threat to the ICC. Instead, its further development should be seen as an opportunity to build an effective and robust system of global justice.
Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict
, looking into the politics and dilemmas of international justice.