CENTRE FOR HUMAN RIGHTS AND LEGAL PLURALISM
CENTRE SUR LES DROITS DE LA PERSONNE ET LE PLURALISME JURIDIQUE
& Société québécoise de droit international
Conférence Katia-Boustany:
Hybrid Courts in Context
17 February 2006
Faculty of Law
3644 Peel, Room 202
PROCÈS-VERBAL
Panel I
Taking Stock of Current Challenges Facing Hybrid Courts
Chair:
Valerie Oosterveld (University of Western Ontario)
Panellists:
David Crane (Former Prosecutor SCSL) – Theme: Special Court for Sierra Leone
DC retired from the SCSL in 2005. He was recently involved in strategic discussions with the
US Government in Washington concerning Charles Taylor.
Jen Kleffner (University of Amsterdam) – Theme: East Timor Serious Crimes Panel
JK is a professor of international law in Amsterdam. His research and publications focus on the
area of international criminal law.
David Crane
Since I left West Africa last July, I have been travelling and thanking a lot of people, because it
was a collaborative effort to establish the world’s first hybrid court. We recognised early on that
NGOs, civil society and academia played a special part in this. One of the cornerstones of our
successful prosecution in Sierra Leone is Luc Côté, Chief of Prosecution. From the very
beginning, the Canadian government stood shoulder to shoulder with the Special Court, and sent
us many interns. Richard Dicker from Human Rights Watch has been a good friend and
supporter with whom we have done some challenging work. I hope that you’re learning
something. It is a rare opportunity that a law student can support directly a war crimes tribunal.
My thanks to everyone.
What did we learn?
The mandate has to be achievable. The international community got it right this time: prosecute
those who bear the greatest responsibility. We cannot prosecute 30,000 people.
The time frame for the tribunal has to be realistic. The “greatest responsibility” mandate
decreases the time requirements. Any tribunal that is in an area for more than 5 years becomes a
potential liability politically both for the international community and for the domestic situation.
This could play out in 2007 in Sierra Leone, when there are presidential elections, and the Court
will have to be largely done by then in order to avoid becoming a campaign issue.
We need to place these tribunals, where possible, at the scene of the crime. People of Sierra
Leone have to see justice work. When we arrive, the rule of law does not exist or is a tool
manipulated by those in power. You have to think of an international tribunal arriving like a
space-ship, which means that much work is required in order to gain trust. In some of our town
hall meetings, we met people who had never seen a white man before. The tribunal must develop
its prosecutorial plans with the knowledge that this is for and about the people. The three things
we have stressed in our town-hall program are: the law is fair; no one is above the law; and the
rule of law is more powerful than the rule of the gun. Outreach programs are critical for the
success of any tribunal.
A truth commission is absolutely necessary with an international tribunal in order to obtain
sustainable peace. Truth plus justice equals peace. We tried to put the word out at the town hall
meetings.
A public defence office is absolutely essential to show people that the law is fair. There must be
a public defender to make sure that the rights of the accused are scrupulously followed, in order
that people can live with the results.
A tribunal needs to tap into resources such as law faculties, civil society and academics. We
saved millions of dollars doing it this way.
What are the challenges?
My biggest challenge in the entire process has been indifference. Nobody cares about what
happens to a few million people in a dark corner of the world. There are crises happening all
over the world, but unless you have direct experience, the world is looking somewhere else. In
the United States, no one cares what happens in West Africa.
Communications and infrastructure problems.
Geographic distance and location.
Security is also an issue when you are in the middle of the crime scene.
Mandate enforcement is a problem – getting the indifferent international community to comply
with treaties and customs when an international arrest warrant has been issued, in order to help
you fulfill the mandate which they have given you. The problems of the political aspect of the
international justice process should also be noted.
Jan Kleffner
Brief description of the challenges of the East Timor Serious Crimes Panel (SCP):
The UN Transitional Administration was endowed with widespread competences, including
setting up courts having jurisdiction over international crimes. The UN withdrew in May 2005,
and internationalisation is still practised, but on the basis of the constitution rather than the UN
mandate.
Why was the tribunal established? This is important in order to describe the framework against
which the forms and functioning of the SCP should be measured. There are three “tales”:
(1) Cynics would say that the SCP can be explained as mere window dressing caused by fatigue
of international community; a demonstration that the security council is no longer willing to
permit ad hoc tribunals. There is a lack of real commitment of the international community to
international criminal law.
(2) Alternatively, the SCP could be seen as an institution of criminal justice, investigating and
prosecuting serious crimes in East Timor with the incidental effect of contributing to
reconciliation. This view would see international law as having been injected into the domestic
order to compensate for the deficiencies of the local system. The international system enlightens
the local system with expertise. The standard of assessment would be the international standards
for international criminal justice: independence, impartiality, rights of the accused, etc.
(3) Finally, the SCP can be seen as a very ambitious project: this view involves considering
internationalised criminal courts not just as institutions of international criminal law, but more
broadly as part of the solution to a number of problems. Problems of legitimacy are faced by
purely domestic courts and purely international tribunals. It was expected that the SCP would be
more acceptable than international courts due to the participation of local actors and its physical
proximity, and more acceptable than domestic courts due to presence of international impartial
participants. Hybrid bodies are a catalyst to the internalisation of international legal
norms/standards. They also building capacity of local lawyers and enhance cultural sensitivity of
international lawyers.
Expectations differ, and the extent of the challenges faced depends upon the perception of
expectations. Notwithstanding that, however, there was a clear lack of commitment on behalf of
the international community.
The SCP started operating in 2001. Closure was narrowly avoided and downsizing occurred
shortly after it began. In the early days, judges had to share offices and computers. There is no
library, no internet access and no administrative support. Partly as a result of these factors, there
was a lack of recruitment of qualified personnel. There were times when the chambers were
unable to operate or there were considerable delays. No court of appeal existed for a
considerable time due to lack of judges. The expertise of those which were recruited can be
doubted. At the beginning of the trials, the quality of the defence was inadequate. This was
mitigated by the establishment of a Defence Lawyers’ Unit, but never fully resolved. Naturally,
this raised concerns as to equality of arms.
Lack of commitment manifested itself not only in funding; also in political terms. The UN
Secretary General’s spokesperson distanced UN from the SCP when it indicted high profile
accused. Added to this was dwindling support of the government of Timor Leste, which did not
seem to regard trials as a high priority. Indonesia has also sought to frustrate the proceedings
from the very beginning, disregarding its international obligations and failing to extradite those
who are implicated at the senior level. It also tried some of the middle level responsible in its
own courts with insufficient standards of impartiality. There is a general lack of willingness to
discover the truth about the occupation period.
Human rights challenges faced by the SCP, which gave rise to concerns as to the capacity of the
Panels to bring about any kind of justice at all:
(1) Prolonged pre-trial detention.
(2) Lack of judicial review of detention.
(3) Violations of right to public hearings due to lack of information.
(4) Non publication of judgments.
(5) Non availability of interpreters.
(6) Considerable delays in proceedings and on appeals.
The SCP never engaged in any meaningful outreach. This was left to civil society, who had to
actively request transcripts and judgments from the Panels.
Questions left to be addressed:
By appearing to do at least something in the face of war crimes, the establishment of the Panels
was too short term and dependent upon political expectations. Do the Panels represent the worst
of all worlds?
Should international actors contribute to capacity-building, or should that be left to other bodies?
Questions/Discussion
In the process of transitional justice, how can we reconcile the interests of peace versus those of
justice?
DC: Both peace and justice are vital. You cannot have peace without the justice part of the
equation. First, you need peace to calm things down, and then get the democracy process started.
But peace cannot continue unless justice is addressed. The new president of Liberia is acting
under the cloud of Charles Taylor, many of whose supporters were elected into Parliament,
including his wife.
Issue of having tribunals on the scene of the crime. How would the ICC feel about having some
of the legal proceedings in the field, as opposed to having them all in The Hague?
DC: We have the right prosecutor at the ICC – he is innovative, open-minded and very
concerned about the fact that the ICC is in The Hague. He knows that at the end of the day, the
victims have to see justice being done, or the effect of justice will be watered down. He has sent
teams to Darfur and Uganda, despite huge logistical and security challenges, because he
recognises that this is important. The witnesses can be of great calibre – they are courageous and
brave, but in many cases they have never left their small town. It takes between one and two
years to get them to where they can give relevant evidence in a way that is understandable to the
court. This is why witness management is such an incredibly important part of the work of
tribunals. You have to inject how the witness’ view of events with international standards of
justice, truth, time and place. The ICC was put together at the same time that the SCSL was
beginning its experience – it was the first time that a tribunal was set up on the crime scene.
How do you overcome political apathy?
DC: You have to deal with the West Africa that is, not the West Africa that you see. West Africa
has fairly strong governments, with Senegal and Nigeria seeing themselves as the strong powers,
which leads to a level of disharmony. In between are countries which are in all forms of
disarray. There are colonial marks on the map. ‘African solutions to African problems’ sounds
like a valuable ethic, but at the level of international criminal law, this way of thinking is a
problem. The Gacaca courts in Rwanda only lead to community service for perpetrators. You
can’t have an African exception to the Nuremberg principles. West African leaders may
privately want individuals to be indicted and prosecuted but will not admit that publicly.
Luc Côté: You have to look at the political context. Sierra Leone was unique in its willingness
to surrender sovereignty. The head of state was willing because he did not think there was
evidence against him. Each other country has different realities, and this has a bearing upon
what it is possible for international criminal law to achieve. In Cambodia, the people had to wait
over 20 years. Also, it takes time to arrive at a point in which people are willing to deal with
problems. In Liberia, we are not at that point – Taylor’s people are still at the centre of Liberian
politics. The main reason to establish the tribunal in the country for me as a prosecutor, is that it
makes your life much easier, your case much stronger, to be able to call on the local police, who
knew their field. In Rwanda and Yugoslavia, cases have taken much longer, because sometimes
they didn’t have access to the territory.
DC: The witness protection program has done a wonderful job in Sierra Leone. It is not easy to
ask a traumatised witness (there were many child soldiers) talk about the personal physical
violations of which they had been victims. Once the tribunal shuts down, they are going to
transplant the entire unit into the Sierra Leonean police force.
JK: It was different in East Timor – there was no one to work with at the outset. There were also
significant language problems.
RP: All of this is very depressing. If hybrid courts are subject to such challenges, the difficulties
faced by the ICC seem insurmountable. How will it manage to sufficiently connect on the
ground?
RP: What is the difference between the degree to which the courts have interacted locally, and
the degree to which it is connected with the outside? There is a need for transnationalisation of
these courts - we need links with other governments, other civil societies, academia, and foreign
governments. Hybridity is an open door to other countries offering a hand. How can you
engineer that, if you create a new court?
DC: The SCSL is of the UN but not in the UN. This is its chance for success. The UN is
incapable of administrating efficient international criminal justice in a politically acceptable time
frame. My colleagues in Rwanda and The Hague are jealous and want to work for us. If I
needed an investigator, I would just pick up the phone, and they would be there within 4 weeks.
In the UN, it would take as much as a year to hire the same individual. My colleagues at the
ICTY and ICTR are working very hard but are saddled by the problems of bureaucracy. My
worry is that the ICC is taking a little of this mantle.
JK: Transnationalisation is a beautiful idea, but it is also dangerous to make a court dependent on
an outside government. You need some serious commitment by all actors involved. If the
process depends upon the outside for spontaneously agreeing to cooperate, that is a problem.
Many of the roles played by NGOs and others should be done by the court. The SCP was an
accident. It happened organically, largely through the efforts of the people on the ground trying
to deal with the immediate aftermath of the atrocities. There was never any international
commitment towards establishing an international tribunal and providing criminal justice.
How do we encourage people from donor countries to carry on? How far can the courts
themselves go in being activist and speaking about their needs?
DC: I began my tenure in West Africa going around capitals and obtaining financial support
from governments. There is a balance to be struck with independence. But in my mind I was
not gong out begging for money. I was explaining how we were going to efficiently use the
money they had already donated. But this is one of the beauties of hybrid courts – in the UN
system, we could not have done it.
In order to find sustainable peace, one needs both peace and reconciliation. What is the
perception of Sierra Leone with regard to the Truth and Reconciliation Commission? And what
are the implications for the ICC, which does not have the opportunity to set up such
commissions?
DC: In Sierra Leone, it was not planned - the Lomé Agreement initially did not foresee a Court,
but the Truth and reconciliation Commission arrived at the same time as the SCSL in July 2002.
Before that, there had been lots of academic discussion about why this was not going to work.
For the first few years there was confusion between us – what is truth, what is justice? It was
vital that the promise not to use evidence from the Commission in the Court was followed
through. The outreach programmes were important in telling people about the concepts of the
Commission and the Court. Towards the end of our third year, the Sierra Leoneans began to
understand the difference, but it was a challenge because we were talking about Western truth
and justice.
Luc Côté: Don’t forget that the original Lomé Agreement said that there would be a general
amnesty for everyone, that there would be a Truth and Reconciliation Commission but that noone would go to jail.