By: Mathias Holvoet
Following the formal establishment of the International Criminal Court (ICC) on July 1, 2002, some expected the future of international criminal justice would center primarily around the ICC and domestic prosecutions. The ‘modest future of hybrid courts’ was predicted, as they were deemed to be a ‘largely subordinate agent’ in the era of the ICC. However, the recent establishment of various hybrid or internationalized criminal mechanisms shows the picture is more nuanced. In 2015, several hybrid or internationalized criminal justice mechanisms have been established such as the Special Criminal Court for the Central African Republic (CAR), the Specialist Chambers for Kosovo, the Special Jurisdiction for Peace in Colombia, the African Union-backed hybrid court for South Sudan. As it currently stands, hybrid courts will not play a secondary role but, to the contrary, will be a crucial complement to the ICC’s and domestic courts’ work.
While the ICC obviously is of fundamental importance for the still fledgling international criminal justice system, it was deliberately designed by States as a relatively small and jurisdictionally constrained institution with a fairly low budget. Consequently, the Court has a limited ability to prosecute and adjudicate individual cases. The ICC’s power will therefore mostly remain soft and symbolic. Illustrations of such power are the monitoring and spurring of States by the Court to prosecute their own cases rather than having the ICC prosecute those cases; in some instances, the potential of the ICC to prevent international crimes through prosecution and social deterrence or more broadly, the influencing of the behavior of States and non-State actors by the norms and ideals that underlie the ICC.
The ICC’s principle of complementarity ensures that the core business of international criminal justice – the investigation, prosecution and adjudication of international crimes – is the primary responsibility of domestic courts. The ICC only steps in when domestic systems are unable or unwilling to act. However, this neglects the rather bleak historical track record of domestic courts’ capability to pursue genuine trials for international crimes. Many states are simply too devastated by war or a conflict with intense violence, that its judicial capacity is too poor to deliver meaningful post-conflict justice. Furthermore, domestic trials often lack a reasonable degree of fairness. Given the fact that international crimes are often crimes committed with the support of the state, domestic mechanisms will often be unreliable and partial. Moreover, the danger of show trials and victor’s justice exists where governments have been replaced after a conflict.
To remedy the limitations and shortcomings of both the ICC and domestic courts, the establishment of hybrid courts has proven and will continue to be crucial, and this is true for both crimes falling outside and within the jurisdictional ambit of the ICC. The Hybrid Court for South Sudan (HCSS) for instance had to be contemplated by the AU because South Sudan did not ratify the ICC Statute, nor did South Sudan lodge an ad hoc acceptance declaration under Article 12(3) of the Statute, nor did the Security Council seriously consider an ICC referral. This left the ICC without jurisdiction ratione loci/ratione personae for crimes committed on the territory of South Sudan and crimes committed by South Sudanese nationals during the South Sudanese civil war.
The Specialist Chambers for Kosovo (SCK) were created because, among the other international criminal justice options on the table, recourse to the ICC was not possible due to its lack of jurisdiction ratione temporis. The ICC has no retroactive jurisdiction and it is not allowed to prosecute crimes committed before July 1, 2002, the date the Rome Statute entered into force. The crimes against humanity and war crimes and crimes under domestic Kosovar law allegedly committed by the Kosovo Liberation Army (KLA) preceded this date since they took place in the period of 1998-2000.
Hybrid courts will also be a crucial complement to the ICC, however, when the latter does hold jurisdiction ratione materiae, ratione loci/ratione personae and ratione temporis. Two instances could be thought of. First, if an ICC State Party wishes to keep the ICC at bay, but doubts it will be able to demonstrate the ability or willingness to pursue genuine accountability, then the addition of international component(s) to domestic proceedings could remedy this. The inclusion of foreigners as judges of the Colombian Special Jurisdiction for Peace is a good example in this perspective. The injection of foreign legal expertise arguably intends to legitimize the Special Jurisdiction and seeks to persuade the ICC of the genuineness of the domestic proceedings. Second, hybrid tribunals could serve as a complement to the ICC for the prosecution and adjudication of suspects other than those subject to proceedings in The Hague. The Special Criminal Court in the CAR is an example of a hybrid court with such a purpose. The ICC is already investigating the situation in the CAR and, furthermore, current ICC Prosecutor has opened a second investigation into crimes committed in the CAR since 2012. Given the breadth of the crimes committed in the CAR, the Special Criminal Court has been welcomed as a valuable complement to the ICC’s work.