Session 7: Beyond the ICC 2 – Local Justice, Hybrid Justice and Alternatives to International Criminal Justice
Making the Global Local: Creating Local Trial Chambers of the International Criminal Court
Caleb H Wheeler, Cardiff University
Chair: Victor Kattan, University of Nottingham
Panel Report by: Olivia Connan and Emily Sainsbury
Whether a trial is fair is almost irrelevant. What is perhaps more relevant is whether the trial is perceived to be fair, and therefore we need to be asking what can be done to make international trials both fair and look fair, and to make justice more recognisable. Opinions have been split on whether trials before the International Criminal Tribunal for the former Yugoslavia (ICTY) were fair.
Members of the affected communities have said “there is no way we can speak from here and be heard by the court”, “the trial should have taken place here from the start in the place where the events actually took place”, and “where are they, we cannot see them or their work”. In light of this, one suggestion that had been made to improve the perception of the fairness of ICTY proceedings had been for it to leave The Hague, although not permanently. This, it was argued, would make for more inclusive justice that is perceived to be more fair. This would have meant conducting ICTY trial proceedings locally, within the affected communities.
In the context of the ICTY, It is possible for the International Criminal Court (ICC) to conduct local trials, however this has never happened. How would local trials bring justice closer to the affected communities? Wheeler identified four ways that the ICC could improve the proximity between its trial activities and affected communities. These were:
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It could facilitate greater attendance by members of affected communities at trial hearings;
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It could increase the support it provides to those actors providing national and international media coverage of its proceedings;
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It could produce and disseminate summaries of its hearings;
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It could improve the physical proximity of the proceedings hearings by conducting at least some of the hearings closer to the location of the alleged crimes.
Trials conducted within national jurisdictions pursuant to universal jurisdiction show it is possible for proceedings to visit, at least, affected communities. For example, in the cases of P v Bazaramba and P v Massaquoi, the Finnish appeal courts travelled to both the affected communities in Rwanda and to Arusha to hear testimony by witnesses before returning to Finland to complete the trial. This provides an example of how trials proceedings can be brought closer to witnesses, victims and affected communities. It seems that ideally trials would take place locally, and whilst the ICC has shown that it would support local trials, there are logistical issues when conducting a trial away from The Hague such as, security concerns, language barriers, an inability to accommodate victims and a lack of sufficient infrastructure, which are preventing trials from taking place locally.
Beyond the ICC, deep in the blind spots of international criminal justice: new hybrid criminal courts
Maddalena Cogorno, University of Florence
The ICC has faced many criticisms such as it has an ‘African bias’, that its investigations and trial proceedings are too long, that it is over-reliant upon domestic jurisdictions which can make it seem impotent when there is a lack of cooperation by states, and because of its low rates of convictions. Since 2015 we have seen the emergence of new hybrid criminal courts; these are a blend of national and international elements in the structure of the Court. Cogorno explored the potential that these hybrid regimes might hold as alternatives to the ICC, which might be better able to avoid some of the criticisms that the ICC has faced.
Some of these hybrid tribunals include the Kosovo Specialist Chambers and the Central African Republic Special Criminal Court. Efforts continue to be underway to establish a Hybrid Court for South Sudan and as recently as Spring 2024 the Liberian voted to approve the establishment of a Special War Crimes Court for Liberia. Hybrid criminal tribunals allow for greater focus on a single situation, and the construction of a more complete narrative of the conflict through the tribunals’ jurisprudence. Furthermore, if the Court sits within the domestic jurisdiction in which the crimes under its investigation occurred, it can be easier for Courts officers to access evidence and witnesses. Integration within the domestic criminal justice system can strengthen domestic ownership of proceedings and ensure a locally compatible form of justice is delivered, thereby enhancing the legitimacy of these institutions and their work.
Finally, where hybrid tribunals are integrated within the ordinary national criminal justice system, the creation and operation of these tribunals with international support can help to build capacity within the wider criminal justice system and help to reinforce the strength of rule of law, human rights, and international criminal justice norms domestically. In doing do, hybrid courts can support wider transitional justice initiatives as post-conflict societies transition from negative peace (the absence of conflict) to positive peace, thereby enabling them to leave a more enduring legacy.
At the same time, there are risks with these hybrid courts such as a greater risk of political interference that can undermine the independence and impartiality of proceedings, there are potentially security issues, and in fragile post-conflict situations where the conflict was bitterly fought on entrenched sectarian line there may be issues around perceived ‘victors justice’ and the lack of fairness in proceedings.
“This panel lead me to the opinion that international criminal justice is a constant compromise, and whilst the ICC may not offer the perfect solution to justice the same can be said for all other avenues to justice such as local trials and hybrid courts.”
The return of amnesties and the desperate search for legal certainty
Jinu Carvajalino, Royal Holloway, University of London
Carvajalino explored whether there might be a legitimate case for the increased use of amnesties. He set out an approach that places less priority on the formal criminal justice process and instead prioritises other mechanisms of transitional justice, in the context of which amnesties may play a legitimate role. He acknowledged that this approach is controversial and may risk the legal certainty of peace processes and the sanctity of domestic criminal procedures. In particular, there is a need to ensure legal certainty for combatants in the context of demobilization negotiations and to ensure that victims’ and communities’ expectations that the transitional justice process will lead to the establishment of the ‘truth’ are met.
However, despite these challenges, Carvajalino suggested that this approach may pave the way for a more practical approach to justice, something that is perhaps more ‘doable’. He emphasised the importance of striking a balance between principles of justice, reconciliation, truth recovery, reparations and non-repetition of the atrocities. Some transitional justice scholars suggest that there is flexibility and creative ambiguity in international law to allow for the return of amnesties to meet these considerations. In the context of international law, amnesties for international crimes are generally not permitted when there are alternative avenues for accountability. However, Carvajalino pointed to the The Belfast Guidelines on Amnesty and Accountability, which he suggested created a format for the development of well-crafted amnesties.
Despite, and perhaps as a result of, the uncertainties acknowledged, Carvajalino called for courts to provide tools to decide when amnesties are acceptable. While the law often favours simplistic dichotomies, such as between ‘right and wrong’ or ‘lawful and unlawful’, in reality what is often called for in practice is a recognition that concerns exist on a spectrum. Different mechanisms could be situated at different levels of the spectrum of the multiple dichotomies at play – justice and peace, accountability and impunity, prohibition and permissibility – depending on the particular characteristics of the conflict and post-conflict situation at hand, and the needs of the post-conflict community. This way amnesties can be developed to best suit the contexts and characteristics at play and ensure fears are quelled and that the needs of the benefactors of the amnesties, the affected communities, and the nature of the crimes are appropriately considered.
For example, in Peru (1995) the overarching aim was to ensure impunity for those responsible for conflict-era atrocities, and in this context the amnesties were used to as a secondary measure to ensure judges did not interfere. In this context, the use of amnesties was illegitimate. However, Carvajalino contrasted this with the use of amnesties in the context of post-apartheid South Africa, where truth and reconciliation were at the forefront of legislators’ minds and a democratic approach was taken in order to do so, with amnesties being used to support and give effect to those primary overarching goals.
Beyond Liberalism and Legalism: Lessons from Grassroots Transitional Justice in Cambodia and East Timor
Fangyi Li, Edinburgh Law School
Li considered the current international legal approach of liberalist, transitional justice and how its post-cold war, truth and reparations-centred approach prioritises the interests of individuals over communities when seeking justice. She highlighted how these Western values of individualism are difficult to reconcile with Asian values of hierarchy, order and collective good. Considering East Timor and Cambodia as case studies, it was clear that taking a localised approach to justice may result in better results for victims and their communities, better aligning with their ideas of effective justice.
Following Indonesia’s ‘scorched earth’ campaign against calls for Timorese independence (1999) it was clear that there had to be a broader assessment of the justice that Timorese people were entitled to. Rather than just taking a rights-based approach to the most recent injustice, the courts considered the loss and broken social relationships that had formed as a result of 24 years of Indonesian occupation. For East Timor, acknowledging the crimes of Indonesia would not be enough to repair the kinship alliances and ancestorial ties that had been harmed through Indonesia’s campaign of repression. In order to do this, bottom-up initiatives were favoured over formal ones. Rather than considering individual victimhood, Asian values are better understood and upheld by taking a forward-looking approach, reinforcing and rebuilding special and cosmological relationships achieved through the acknowledgement of guilt and apologies from perpetrators over persecution and imprisonment.
In Cambodia a similar approach was taken. Considering the Buddhist beliefs of the community members, and most importantly the sanctity placed upon letting go of past suffering and believing that those who inflicted great suffering will too experience it through the effects of karma, it was clear that for victims and their communities meditation and purification in order to rid oneself of feelings of hatred was far more valuable than an international courts acknowledgement of the injustice they had experienced. Again, a bottom-up approach was favoured, placing emphasis on healing and moving forward, not focusing on self as is the approach of western ideology. This has been implemented through initiatives and organisations like Bophana Audiovisual Resource Center, Cambodian Women’s Oral History Project and the Transcultural Psychosocial Organisation who document victims’ experiences and oral histories and promote restorative justice through dialogue, psychological support and education.
Li calls for greater attention to the grass roots movements which have often been ignored due to their foreignness to liberal conceptions of human rights.
“A recurring theme across this panel was the importance of having an open-mind and context based approach to international justice. It is not that the approaches we have at the moment are wrong but that they should be applied and understood in and amongst the communities that require these judicial services and how we can best meet their desires for justice.
Although it is difficult for local ideas and motivations to be fully understood at an international level, any transitional justice programme should aim to have local priorities at the forefront of their minds when making decisions, be that by holding trails within the community, considering the benefits of an amnesty or taking into account differing cultural ideas of justice and forgiveness.”