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 4
Contribution to Post-Conflict Reconciliation
Chair:
Chile Eboe-Osuji (former ICTR prosecutor)
Panellists:
Payam Akhavan (McGill and former ICTY prosecutor) – Theme: Potential and Limits of
International Criminal Law
Bruce Broomhall (UQAM) – Theme: Civil Society and Hybrid Courts
Chandra Sriram (University of East London School of Law) – Theme: The SCSL and Sierra
Leonean Society
Chile Eboe-Osuji:
The ad hoc tribunals, as is made clear in the UN resolutions establishing them, have a penal
objective, but also an objective of national reconciliation. For the observer, it is easier to
appreciate the penal objectives in the work of these tribunals, by looking at the number of trials,
the number of accused and the sentences. It is sufficient to look at media reports to find this out.
But it is harder to evaluate the impact of tribunals on the second objective, that of national
reconciliation. This panel will take a stab at making such an appreciation. To what extent are ad
hoc tribunals making these contributions, or failing to make them, and why? Are any of these
objectives incompatible with the penal objectives? Is collaboration possible with other actors
such as civil society and NGOs?
Chandra Sriram:
Conducted field work at the SCSL in the summer of 2004; interviewed court staff, international
NGOs, private citizens, students, UN staff. What I will say is not my own interpretation, but that
of all these actors, which I have tried to put within a framework.
Key questions:
Are hybrid tribunals the right size?
What are the supposed advantages of hybrid tribunals?
What are hybrid tribunals meant to rectify?
The externalisation of justice has several attendant problems:
 lack of meaning for victims, compounded by problems of illiteracy
 lack of meaning for society at large; little impact on public records or the rule of law
 backlash or counterproductive interpretations, especially in situations where perpetrators still
retain power and frame the tribunal’s work as an attack on the country sovereignty
 costliness
 slowness
 distance from the conflict society giving rise to perceptions of the tribunals’ work as
irrelevant or illegitimate.
The opposite is domestic justice, which obviously also has problems, particularly limited funding
and backlash.
Hybrid tribunals are supposed to do better in many of the above respects.
Are hybrid tribunals the right size?
Two elements are particularly notable:
 Composition of staff – international staffing standards are applied which may lead to better
protection of rights. The presence of local staff increases the legitimacy of the tribunal.
 Location – the tribunals are usually at or near the location of the conflict. This may mitigate
some concerns which we have already seen earlier.
Does the SCSL fit this model? Many of the problems of international justice arise:
 The Court has been seen by many as a foreign imposition - some staff at the early stage, as
now, were American or British
 Dissemination across the country has been problematic, especially because of low levels of
literacy. Great efforts were made with the outreach schemes, but the lack of an outreach body
may have led to association of the court and the prosecutor as the same thing.
 Sessions are open to public, but most Sierra Leonean people are unaware of this.
 It is also not clear that the court will turn out to be significantly more rapid, or even
necessarily significantly cheaper.
 The SCSL lacks the power to compel extradition.
 There have been accusations of political bias and government influence, but also of influence
by international community. Whilst being tagged as having a foreign bias, the SCSL is also
considered by some as excessively Sierra Leonian, who assert that it is unfair to nonnationals?
 Many of the embedded limitations (of both domestic and international) remain  Q: is this
inevitable?
 Capacity building has been highlighted – can this be improved?
 We don’t want just one model for hybrid courts, but in essence we only have two models with
a little variation: mostly international with a little domestic input, or mostly domestic with a
little international input. We want models which are more context-sensitive.
Bruce Broomhall
I want to be ambitious in thinking about international justice and how we conceive our program
of work. We have heard a great deal about the limits of the tribunals, but I attribute a number of
those to a lack of political will, and I think these things can be changed in the years to come.
Objectives:
 Justice (necessarily for some): to prosecute senior leaders and “those most responsible”.
 Through the judicial process, and within limits, to correct the historical record and establish
the truth.
 Make the truth speakable, and change collective memory and political discourse, thereby
preventing the legitimisation of the atrocities of the past by politicians planning their comeback.
 Long-term demonstration effect: creating respect for the rule of law and increasing its
viability in a way specific to each societal context.
In a non-pejorative sense, every trial is a little bit of a “show trial”, that is, it has something to
demonstrate to the public it targets. In this context we can ask, what is the message that people
will take away from the Iraq trial? The primary answer seems to be, that it is in fact part of
series of acts forming a public humiliation of the Sunni people. The ‘show’ as it is currently
being played out is profoundly unhelpful to the objectives of international criminal law.
In Cambodia, there was an initial idea to put the Extraordinary Chambers in a theatre in the
centre of the city. They were then moved to a military base on the edge of the city. How will
they play out, and in whose interests will they be conducted? What integrity will they have in
the short-term? What will their long-term message be?
There will be very few defendants – probably six to twelve. Some of those currently on the list
will not make it to trial for health reasons. If the international community were more ambitious,
and were willing to go down to the district level of the Khmer Rouge command structure (this is
not the lowest level), we might have a total of about three hundred survivors who could be
accused. The senior leaders and those most responsible would number about 50 or 60, according
to Steve Heder, which is ten times the number of those who are now likely to be prosecuted. Yet
we can safely predict this will not happen. What is the impact of this remaining impunity?
The trial will also be potentially be unfair – the international community must be ready for
procedural problems arising from the limited budget, the incompetence or bias of judges, and
other problems. Also, I am not convinced that the Prime Minister will go forward in a
straightforward way, given his past record and the current harassment of human rights activists
in Cambodia.
The fact that there will be very few accused will create a societal debate on very sensitive issues
– how can civil society engage in this?
How do we address these issues?
 Talk with the donor community – governments, private organisations, etc., so that they can
play an effective role of oversight and pressure on the Cambodian government.
 Place full-time people on the ground to liaise with NGOs and the government permanently.
There is often an approach in our community based on legal analysis and on legal technical
assistance. But this is not enough. We are at a historical moment where the institutions are still
fragile and need to be brought into the mainstream of thinking about international law – into the
mainstream of peace negotiations, for example. Many of our programs need to be tied into a
broader paradigm of development: of training, outreach, victim protection, freedom of the media,
democracy. All these issues are radically affected by how justice is meted out in a post-conflict
setting, and should form part of the planning of any academic or civil-society intervention in an
international justice process.
Payam Akhavan
How do hybrid courts as opposed to international courts fulfill the need to reconcile the global
and the local and the need for participation without fragmentation?
While there has been a backlash against the experience of the ad hoc tribunals, perhaps we
should revisit the idea of internationalism in terms of types of protection. We must adjust our
thinking and recognise that these tribunals have their own objectives which transcend those of
the societies affected.
In many places, conflict prevention has failed. We still see in the UN and the international
community an entrenched culture of reaction. Darfur is but one example of this failure. Other
speakers have addressed the potential for criminal justice to contribute to reconciliation broadly:
truth-speaking initiating a space for democratic debate, etc. I want to speak to the minutiae of
the criminal process to reconciliation in the wake of conflicts.
The criminal justice process can encourage peace through many avenues, but there are limits. H.
Arendt criticised the Prosecutor in Eichmann for trying to transform the trial into a show trial,
and in doing so ignoring the needs of the defendants. It should not have been about the suffering
of the Jews, but the actions of the accused. The only thing that criminal justice can speak to is
the guilt or innocence of the accused.
What is important is the process by which each person has the occasion to tell their story and
have it vindicated in a public space. The Truth and Reconciliation Commission allows for much
more vindication of suffering/catharsis, but we must be realistic about catharsis: it invokes the
idea of things broken, so fix them, including people. We should be cautious about the notion of
catharsis, and especially of closure. Not everything, not everyone can be fixed. Catharsis is not
about constructing an all-encompassing narrative of suffering and bringing it to closure, but
allowing the victim a selective ritual retrieval of the past – as a sort of homeopathic treatment of
trauma. The idea of closure can do more harm than good, by denying the trauma. The leitmotiv
of Holocaust historians today is the inscrutability of the genocide. This is the most fitting
treatment of the atrocities, rather than closure. What you don’t say is as important as what you
do say.
Despite the talk about victims, international criminal justice is best understood as an elitist
exercise. I am sceptical of the victim discourse. Part of the narrative is that people in the Third
World are either violators or victims, with the West appearing as the saviour. I question whether
the victims are the first and most important audience. Heads of state, ministers, and ambitious
warriors in the bush are the real audience of the exercise. We should be aiming to instil
subliminal inhibitions against violence. Mass violence actually occurs because certain groups
use the instrumentality of the state. Those whose cost-benefit analysis is most likely to be
affected by international criminal law are those with power.
International criminal law also has an effect in the socio-pedagogical domain. Legal systems
function because of habitual lawfulness. In the context of, for example, Rwanda, there was
habitual legitimisation of torture, rape etc. The task is to reconcile the local and the global.
Despite scepticism, international courts should move in the direction of mainstream international
justice.
The ICC should continue to play a pivotal role, and local and hybrid courts should, instead of
leading to a process of fragmentation, be mainstreamed into an international process of criminal
justice.