Should Sri Lanka Have A Hybrid Tribunal? – OpEd

‘Hybrid Courts with international judges’ is arguably the most controversial phraseology in the Transitional Justice lexicon in Sri Lanka today. The range of emotions associated with its usage and employment range from one extreme to the other.

While there is little doubt that Sri Lanka needs a judicial mechanism which musters international confidence and support, insistence on ‘Hybrid Courts with international judges’ by the 11 member Consultative Task Force (CTF) as the judicial answer to impunity has converted the justice debate in the country to a semantic slug-feast demanding attention to the phrase ‘Hybrid Courts’. This necessitates a close examination of six existing hybrid tribunals to understand the contexts of their functioning and the viability of this judicial model in Sri Lanka.

Special Court for Sierra Leone (SCSL)

SCSL earned the distinction of being among the first Hybrid Court formed to try grave violations of international law in 2002 and the only hybrid court to convict a head of State among others. Created in the backdrop of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the Rome Statute establishing the permanent International Criminal Court (ICC), the SCSC took birth on the wisdom that merging domestic and international elements accord a greater sense of legitimacy to criminal trials apart from being economically less prohibitive.

Interestingly, the desire to have UN assistance for a quasi-international trial was mooted by the Sierra Leone government itself, the finer aspects of which were ironed out after deliberations between the Secretary General and the UNSC. The Court was established pursuant to an agreement between the then UN Secretary General Kofi Annan and the Sierra Leone government which materialized on 16th January 2002. Significantly, the agreement was internalized through a national legislation giving a strong domestic color and making it a hybrid arrangement.

Thus, heavy UN involvement and a strong willingness on the part of the Sierra Leone government to take a lead in forming the court were defining elements of this judicial venture. Significantly, the SCSC remains the only hybrid court to have successfully completed its mandate.

Extraordinary Chambers in the Courts of Cambodia (ECCC)

Unlike Sierra Leone which witnessed heavy UNSC involvement, the UN General Assembly was at the forefront of transitional justice efforts in Cambodia. Additionally, the Cambodian government’s willing to permit UN involvement in the trial process of Khmer Rouge leaders similar to Sierra Leone was an integral feature of this arrangement started in 2006.

However, unlike Sierra Leone, Cambodia exerted superior negotiating powers in driving out key bargains in negotiations with the UN partly due to the absence of UNSC involvement in the exercise. The establishment of the Court was through a domestic law after a successful agreement with the UN on the clear understanding that the law to be applicable would be a domestic one.

Interestingly, ECCC had a majority of domestic judges, a suggestion incorporated by the Sri Lankan CTF. Thus both the governments of Sierra Leone and Cambodia were co-operative stakeholders in creating hybrid mechanisms through a domestic law in the aftermath of strong UN involvement, albeit with varying intensities.

In addition, a realization that stand alone national trials could not be conducted in the wake of paucity of resources and sufficiently trained manpower in both these countries was a contributing factor for international involvement.

Special Panels of the Dili District Court (Timor Leste)

Established in East Timor in 2000 to try individuals responsible for atrocities committed in the aftermath of the 1999 UN mandated referendum which voted for independence, the Special Panels were the handiwork of the United Nations Transitional Administration in East Timor (UNTAET). Unlike Sierra Leone and Cambodia which witnessed creation of domestic structures with strong UN assistance, East Timor was a case which saw full involvement of the UN given the absence of an independent state apparatus in the country.

This handholding by the UN created Panels which though international was termed ‘Hybrid’ due the involvement of local judges. Resource crunch, absence of experts and a hostile political climate in Indonesia lead to the abandonment of the judicial experiment midway in May 2005 in favor of other transitional justice measures. However, despite its abrupt ending the Court is significant for the unprecedented UN involvement in its conceptualization making it an international effort given a domestic dressing.
Regulation 64 Panels (Kosovo)

Like East Timor, the prosecution of serious crimes in Kosovo witnessed full UN ownership under the leadership of the United Nations Mission in Kosovo (UNMIK). Vested with the power to issue Regulations mandating prosecutions, initial attempts in creating an appropriate judicial mechanism met with infrastructural and resource constraints. Owing to a crisis of credibility and the need to have greater international judicial participation, UNMIK created courts known as ‘Regulation 64 panels’.

Interestingly, the Kosovo tribunal is the only one of the two hybrid mechanisms created in a territory already having a War Crimes Court namely the ICTY. Unlike Sierra Leone and Cambodia and like East Timor Kosovo witnessed whole scale UN involvement through Chapter VII resolutions which saw UN authorities being given power to formulate legal structures. In such a scenario, the latter trials have a far greater international component than the former ones.

Bosnian War Crimes Chamber

Established specifically for Bosnia and Herzegovina, the Bosnian War Crimes Chamber along with Kosovo’s Regulation 64 panels is the other Hybrid Court created in a territory witnessing exercise of jurisdiction by an existing Court- the ICTY.

A brainchild of the UN Security Council to ease the load of the ICTY and logically culminate the mandate of the latter, the court is a full time product of UN intervention. Over time the Court has assumed a domestic character and tends to be categorized as such except to the extent of UN efforts involved in its creation.

Special Tribunal for Lebanon (STL)

Created to prosecute individuals involved in the February 2005 assassination of Prime Minister Rafik Hariri and 21 others, the STL is unique in its mandate to focus attention on a specific event and its causes.

Similar to East Timor and Kosovo in its establishment through a Chapter VII resolution, the STL has all the markings of an international court due to concerted UN involvement in its establishment but for the presence of Lebanese judges. In addition like Sierra Leone and Cambodia, the STL was established, inter alia at the request of the host state.

Conclusion

With the Sri Lankan government not interested in international involvement in the trial process and UN enthusiasm for a Hybrid mechanism in the country still not ascertainable, it is important that the transitional justice debate moves to a “substance” oriented one as opposed to a “form” one that is being witnessed currently. The logic of hybrid courts are based on an understanding that a common framework of such courts exist which can be domestically replicated in the Sri Lankan setting.

While international judges are an integral component of the hybrid court mechanism, such courts in reality are more about international involvement, strong UN participation and co-opting host states to willingly accept a shared international mechanism in the broader interest of justice. Given the nature of the conflict, the cry for justice and the official position of the Sri Lankan government any judicial mechanism in the Country would be unique Sri Lankan model with appropriate UN and international involvement whether termed ‘Hybrid’, ‘domestic’ or otherwise. This model would be Sri Lanka’s unique contribution to International Criminal Justice and should necessarily have the blessings of the international community to be a legitimate exercise.

*Abraham Joseph is a PhD candidate in International Criminal Law from NLSIU, Bangalore and an Assistant Professor in Ansal School of Law, Ansal University, Gurgaon.