The Promise of Hybrid Courts

Abstract

Over the past decade, issues of accountability and reconciliation in the aftermath of mass atrocities have increasingly dominated the field of international human rights. Much of the discussion among scholars and policy-makers has focused on the relative merits of international tribunals - such as the International Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the newly created International Criminal Court (ICC) - and domestic approaches, such as local trials or truth commissions. Comparatively little attention has been paid, however, to a newly emerging form of accountability and reconciliation: hybrid domestic-international courts. Such courts are "hybrid" because both the institutional apparatus and the applicable law consist of a blend of the international and the domestic. Foreign judges sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local lawyers working with those from other countries. The judges apply domestic law that has been reformed to accord with international standards. This hybrid model has developed in a range of settings, generally post-conflict situations where no politically viable full-fledged international tribunal exists, as in East Timor or Sierra Leone, or where an international tribunal exists but cannot cope with the sheer number of cases, as in Kosovo. Most recently, an agreement to create a hybrid court in Cambodia has been reached, and there is discussion about creating a such a court in post-war Iraq. Hybrid courts have not yet been the subject of sustained analysis, even among scholars and policy-makers who focus on transitional justice issues. This article seeks to fill that gap by identifying hybrid courts as an important area of future study and making a preliminary assessment of their potential strengths and weaknesses. I look at the Kosovo, East Timor, and Sierra Leone courts, and I suggest that such courts, while not perfect, hold considerable promise as a model, particularly with regard to their perceived legitimacy (among both international and domestic constituencies), their ability to catalyze local efforts to establish rule of law institutions, and their potential to foster the development of human rights norms within emerging legal systems. Finally, I discuss ways in which hybrid courts might fit into the ICC's complementarity regime. I argue that such courts are best seen not as alternative to international or local justice, but rather as an important complement to both.

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