By CRIMINAL LAWYER A. ILANCHELIAN MBA
For the first time since the end of the Second World War, international criminal tribunals were established to investigate, prosecute and try individuals accused of committing international war crimes of the most grave and serious nature, including genocide.
In recent years a number of criminal tribunals have been established to investigate, prosecute and try individuals accused of serious violations of international humanitarian law and international human rights. These tribunals have been described as ‘hybrid’ or ‘internationalised’ tribunals as their structure and applicable law consist of both international and national elements.
Six such tribunals were prime examples in operation: the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, Regulation 64 panels in Kosovo, the War Crimes Chamber for Bosnia and Herzegovina, the Iraqi High Tribunal and the Special Tribunal for Lebanon.
Defining Hybrid and International Tribunals
Such tribunals have been described as ‘hybrid’ or ‘internationalised’ courts as ‘both the institutional apparatus and the applicable law consist of a blend of the international and the domestic’. Cases describes the term ‘internationalised’ tribunals:
‘as encompassing judicial bodies that have a mixed composition, consisting of both international judges and of judges having the nationality of the State where trials are held. There may be two versions of these courts and tribunals. First, they may be organs of the relevant State, being part of its judiciary. Alternatively, the courts may be international in nature: they may be set up under an international agreement and not be part of the national judiciary’.
There are three models of hybrid and internationalized tribunals, each having a different legal and jurisdictional basis. These are:
- Courts effectively operating as national institutions of the affected state
- Courts established by treaty
- Courts established by the Security Council acting under its powers pursuant to Chapter VII of the Charter
The majority of internationalised tribunals, if not all such tribunals, including those to be established in the future, fall within one of these three categories, despite vast differences in the circumstances leading to their establishment.
There are three legal obstacles to the exercise of jurisdiction:
- Gain Custody of the Accused.
Building upon the past records of tribunals suggests that the tribunals have not always adopted the correct approach to whether these barriers to the exercise of jurisdiction apply. When determining such issues, the tribunals need to consider the nature of their establishment, their legal basis and the nature and source of the jurisdiction that they are to exercise. This approach would lead to a more principled and consistent basis for such decisions.
The Special Court for Sierra Leone (SCSL); the International Judges and Prosecutors Programme in Kosovo (IJPP); the Special Panels for Serious Crimes in East Timor (SPSC); the Extraordinary Chambers in the Courts of Cambodia (ECCC); the War Crimes Chamber in the State Court of Bosnia and Herzegovina (WCC); the Iraqi High Tribunal (IHT); and the Special Tribunal for Lebanon (LST). All of these tribunals have been established in difficult and diverse circumstances. The key features of the tribunals, whilst there are some similarities between the tribunals, there are also many differences. Although this may suggest that no common defining features or unifying themes or approaches can be identified, the actual aim is to establish that it is possible to categorise the tribunal based on their legal basis.
The key aims of this analysis are: to examine the role of hybrid and internationalised judicial institutions in prosecuting war crimes in Sri Lanka; to outline the basic features of the existing and proposed hybrid or internationalised tribunals in Sri Lanka; to define and categorise the tribunals; to determine the jurisdictional basis of each tribunal; to analyse how the jurisdictional basis affects other issues, such as the applicable law, the application of amnesties and immunities and the relationship of these tribunals within the host state Sri Lanka, national courts and other international criminal tribunals.
Developments in international criminal law, including the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC), and the reliance by states on the principle of universal jurisdiction, have been motivated by the desire to avoid impunity for international crimes.
One way of achieving criminal accountability is through national trials, which are generally considered to be the primary forum for accountability. The important role of trials before national courts is also reflected in the principle of complementarity found in the Rome Statute. However, national proceedings may be restricted through the operation of legal principles such as statutes of limitation, amnesties, immunity and insufficient or inadequate provision for such crimes in domestic law. Trials may also encounter a lack of political support, corruption within the state actors and/or insufficient resources.
Another mechanism is the establishment of international criminal tribunals by the United Nations Security Council. This model has the benefit of legal coercion and universality of application by virtue of the near-universal membership of the United Nations. However, this method is also hostage to the priorities and the political dynamics of the Security Council.
The five permanent members can veto any decision to establish a tribunal that may affect their own national interests, or the interests of states or individuals closely associated with that state. This means that it is unlikely that individuals within those states, or their allies, will face trials for their actions before an international tribunal. Even amongst states that do not fall within this protected category, the limited attention and resources of the Security Council and the United Nations means that international mechanisms are not established for the majority of situations. .
In November 1994 the Security Council established the ICTR, an international tribunal for the purposes of prosecuting the people responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda, and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring states, between 1 January 1994 and 31 December 1998 Unlike the conflict(s) in the former Yugoslavia (ICTY), the genocide in Rwanda was an internal affair. However, the Security Council recognised that the situation in Rwanda constituted a threat to international peace and security. As with Resolution 827 establishing the ICTY, the Security Council expressly relied upon its powers under Chapter VII of the Charter.
Hybrid Tribunal is a blending of the national and international in one institution. The SCSL and the LST are possible examples of this model. This would include internationalised tribunals – essentially domestic institutions but with significant input from other states or from other international institutions such as the United Nations.
International assistance does not have to be addressed at supporting an entire court but could instead be targeted at a particular aspect of the process, such as investigation or prosecution. It is known as ‘sui generis arrangements’ whereby a state has agreed to host a tribunal or trial conducted by the courts of another state on its territory.
The tribunals examples needs to be considered are the SCSL, the LST, the IJPP, the SPSC, the ECCC, the WCC and the IHT. These tribunals are said to offer the advantages of both national and international prosecutions. The addition of international judges and prosecutors in sensitive cases may bolster the capacity of the local judiciary and enhance the perception that the judiciary is independent and impartial in the eyes of the public.
International involvement may allow minority groups greater participation and protection. International judges and prosecutors should be familiar with the relevant international laws and standards, while local judges are familiar with the relevant local law and the territory. If situated in the affected territory, internationalised tribunals may enable a sense of domestic ownership of and engagement with the criminal justice process.
Establishing an internationalised tribunal may enable the revision of national laws to more clearly incorporate international crimes and may encourage the penetration of international norms both within the territory affected and also, potentially, in the wider region. Moreover, internationalised tribunals may lead to trials being started and completed more quickly than rebuilding domestic capacity, so allowing prosecution to be expedited, without compromising standards. However, it is also possible that internationalised tribunals could replicate the failings of both international and national prosecutions. Incorporating dual aspects might lead to problems with cooperation between national and international elements.
National and international judges may operate from different legal philosophies, particularly where there is a mixture of judges from civil and common law systems. Developing capacity amongst the local legal profession requires interaction and mentoring, which is not always a task for which international judges are well-prepared or have sufficient time to undertake.
Locating the tribunal in affected areas Jaffna or Vanni may enable greater engagement, but if the security situation deteriorates it may actually threaten the ability of victims and witnesses, defence lawyers and even tribunal personnel to attend, let alone participate in the trials to be conducted. The appointment of international judges and prosecutors may not be sufficient to ensure impartiality, particularly where international judges form a minority on a judging panel. Moreover, the involvement of international actors could create its own concerns regarding the independence of the system and the personnel, or it ma y place a veil of legitimacy on a national system that may lack independence or be corrupt.
A suitable body of applicable law may not exist, or the selection of the applicable law may be controversial. Tribunals may not have a clear prosecution strategy and may squander valuable resources on cases concerning lower-level accused or ‘ordinary crimes’. Internationalised tribunals may even face greater challenges in securing international and domestic cooperation than either international or domestic institutions.
Perhaps the most significant factor that has impacted upon the performance of all internationalised tribunals to date is the reluctance of the relevant international actors and, in some circumstances, of the state affected, to allocate a sufficient amount and reliable source of funding to the tribunal.