JOURNAL OF INTERNATIONAL ACADEMIC RESEARCH FOR MULTIDISCIPLINARY Impact Factor 1.625, ISSN: , Volume 3, Issue 6, July 2015

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1 HYBRID COURTS AN EFFECTIVE SYSTEM FOR TRANSITIONAL JUSTICE DELIVERANCE MEGHNA MISHRA* YUVRAJ NAIN** *Student, Institute of Law, Nirma University, Gujarat, India **Student, Institute of Law, Nirma University, Gujarat, India ABSTRACT Hybrid Court is a new form of international crime court. Such a policy tool assures a combination of the benefits and the drawbacks of a complete domestic trial system, that takes places within every country; and an international trial system that dwells in the international forum. Such courts are usually established in critical circumstances; customarily post a skirmish in order to deliver justice to the victims of the conflict. Though the hybrid courts are established exterior to the domestic system, their enforcement is largely dependent upon the domestic justice mechanisms. The main purpose of this paper is to analyze the potential impacts of adopting such a policy into the domestic justice delivery system of a state that has recently undergone a struggle. If such courts were able to acquire adequate mandates and the basic support, politically as well as fiscally, they would flourish in terms of capacity building as well. These courts have marked their prominence as an imperative canon in the advancement of transitional justice. An increase in the establishment of hybrid tribunals could deliver more faith in the rule of law policy, creating an anecdote for further design of hybrid tribunals and ensure a lasting legacy of restoring justice persistently. This paper concludes that the perpetrators of crimes on the Rohingaya Muslims can be brought to Justice by setting up of a Hybrid court which would be much more effective in dealing with a cross border scenario. KEYWORDS:-Transitional justice Ad Hoc Tribunals Hybrid Third Generation Court Local Empowerment Capacity Building Rationale Rohingaya Muslims. INTRODUCTION Notably known as the third generation mechanism to deal with International crimes, these hybrid courts are anticipated to meet great prospects. These courts are framed to discourse a specific status quo. Such courts established to address particular situations, which as termed as ad hoc institutions. These intuitions are often procreated out of come political or historical state of affairs. Hybrid courts are a variety of International criminal courts that are 129

2 formed which a notion to institutionalize the present International criminal justice delivery system in a more appropriate manner. These hybrid courts are a mixture of domestic and International components that are said to be a combination which embraces a great deal of potential that elude the shortcomings of the second generation courts such as International Criminal Tribunal of Yugoslavia, International Criminal Tribunal of Rwanda etc., where in domestic trials are conducted by International courts. This form of an International criminal court is believed to combine the advantages of local prosecutions and the fortes of ad hoc tribunals. One of the hybrid tribunal to came into existence was Special Panels of the Dili District Court, famously known as the East Timor Tribunal, that was created in the year 2000 to try cases of serious criminal offences that happened to have taken place in the year 1999 in East Timor. The tribunal was created by the United Nations Transitional Admiration in East Timor. The tribunal padlocked its operations in the year 2006 after achieving anticipated purpose like every other ad hoc tribunal. The most recent hybrid tribunal is formed in Chad, Africa known as the Extraordinary African Chambers in Senegal that was established in the year 2013, and is in existence at present. This paper statuses the significance of this variant mechanism in order to deliver justice with regards to International crimes. The paper explains the characteristics of hybrid courts from other ad hoc tribunals, deduced from the historical background of its location and other existing International criminal justice mode. The paper also envisages the progress in the decay of International crimes that affect the blameless at massive quotients. SCOPE: A court is said to be a hybrid court or another second generation International criminal court depending upon its establishment Orin Corporation of the tribunal is made into the judiciary of a particular state. They may be denoted to be a standalone body. The main objective of the paper is to identify the key hybrid elements mandatory for a court to be labelled hybrid and compare the advantages with the drawbacks of such hybrid tribunals. The paper aims at understanding the difference between hybrid tribunals as an ad hoc tribunal besides other ad hoc tribunals in existence such as the International Criminal Court of Rwanda and International Criminal Court of Yugoslavia. These latter courts have a quantum amount of United Nations involvement. Each hybrid court has a separate purpose in lieu of its 130

3 establishment and the fundamental differences among these hybrid courts include the laws applicable for dispute resolution. The existing International courts such as the International Criminal Tribunal of Yugoslavia, International Criminal Tribunal of Rwanda etc. are said to be functioning in a well stated manner, however they are criticized for founding International case law, and it fails to comply with the domestic scenario. In ad-hoc International criminal forums, the establishment is instantly made for rendering justice; the fundamental problem arises when tailoring of laws comes into play for the deliverance of justice. Habitually in the International criminal forums, the justice delivered is not perceived as equivalent in accordance to the local canons where the crime has been committed. It is important to empower the inhabitants in way that there is an involvement of the locals in the panel of the adjudicators as well as the laws followed by that specific tribunals are framed with gen of its impact upon the local persons victimized by the perpetrators. FUCNTIONING OF CURRENT HYDRID TRIBUNALS: Hybrid courts are a mechanism to transitional justice 1. This form of justice is not a defined form of Justice, but is a mere approach to achieve justice in times of switch from conflict or war times. Hybrid courts are a mechanism that has the ability to provide justice that varies from recognizing the rights of the victims to strengthening the rules of law. This form of justice is significant since the crimes taking place on an International level not only directly affects the victims of the crime, but it also the society on the whole because of which there is a degradation in the structural and functional development of the affected state. These courts help in achieving not only state development that was hampered due to conflict, but also aids refining the social justice system of the country. These hybrid courts unlike the International criminal court [ICC] are an ad hoc tribunal that is framed for a specific period of time, in order to resolve a particular dispute, or the basis of its creation is a particular conflict. The first ever hybrid court that was established was that in the country of Sierra Leone 2. A hybrid court was installed in the year 2000 as the special court of Sierra Leone upon a covenant between the Sierra Leonean government 3 and the United Nations upon a United Nations Security Council 4. This court was empowered to convict all those persons who were responsible for committing breach of responsibility for violation of International humanitarian law and Sierra Leone laws committed during the Sierra Leone Civil War 5. The court has already issued a number of condemnations 6. The court had no jurisdiction over 131

4 persons below 15 years of age noted at the time of alleged commission of the crime. The national courts of Sierra Leone and these hybrid tribunals had concurrent jurisdiction, however the hybrid tribunal had superiority in case of any conflict of jurisdiction. Also in case any amnesty given unreasonably to any perpetrator, this hybrid tribunal has the right to try them. In this court, the United Nations had a crucial role. It operated in its transitional power, acting as a transitional authority in the country that was affected by grave International crimes such as crime against humanity, massive destruction of property and evictions etc. This hybrid court witnessed the country got through independence in the year 2002 and ceased in the year In this hybrid court, the panel consisted of two International and one national judge. The panel had universal jurisdiction over International crimes that included crime against humanity, war crimes, torture and Genocide and also all those crimes that were committed within the country within the period from January 1999 to October The jurisdiction of this court also laid its exclusivity upon the domestic courts of East Timor, with reverence to the crimes within the country. East Timor got its liberation in the year 2002 after which the court continued its operation through public prosecution service and special crime units that were a mode of functioning until the year 2005, after which the UN upkeep was inhibited and the court s operation indeterminately terminated. The hybrid court at Kosovo is the Regulation 64 Panels, in the court of Kosovo was established by the Security Council of the United Nations 8. The main functioning of this ad hoc organization was to administer the territory and the population, rebuild the domestic judicial system of the said country that was devastated by war, in a manner that they population could be restored and eventually the country is in a situation to acquire autonomy itself. This court was framed in lines of the International criminal court of Yugoslavia. The said court had its jurisdiction over all those persons responsible for crimes committed that were either racially motivated or any war crimes since 1 st January, 1988; with principal jurisdiction over the domestic courts of the country and synchronized jurisdiction with the International Tribunal of Yugoslavia as the International Criminal Tribunal of Yugoslavia was deficient to try offenders of lower profile 9. The composition of the court consisted of a majority of International judges and prosecutors who would not only convict the perpetrators, but also help in strengthening the judicial system of the country after massive devastations occurred. The reconstitution of the domestic judicial system was tasking as the local Serbs 132

5 had fled because of the heinous crimes caused upon them, and the others lacked experience in the field of law. Hence the hybrid courts may be said to have more of International persons as its operating personnel. This court was formed in collaboration with the International criminal tribunal of Yugoslavia where in the Kosovo was crime tribunal laid emphasis on those offenders of lower profile complementing the powers of the International Criminal Tribunal of Yugoslavia. Through the establishment of this court, there was an improved efficacy in the trials, the rights of the defines were well defined and non disclosure of identity of the defines was a paramount change in comparison to the previous legal system that was implemented. In the year 2003, over an agreement between the United Nations and the government of Cambodia through a resolution 10 passed by the United Nations General Assembly 11, a court was set up. The court has been named as the Extraordinary Chambers in the Courts of Cambodia, also known as the Khmer Rouge Tribunal based upon its place of establishment. This court has been given the status of Hybrid Courts as the bench includes both foreign and well as local judges to try the cases upon which the court has its jurisdiction 12. Though the majority of the judges are local, the court has been bestowed with the status of being a hybrid tribunal. This court was established to chiefly try the senior leaders of the Khmer Rouge, Pol Pot, Nuon Chea, Ieng Sary, Son Sen, and Khieu Samphan; who were responsible for the grave violations of the International Humanitarian law, various conventions of which Cambodia was a part of, and also the International customary law that was breached by these personnel of the Khmer Rouge between 1975 and This court was empowered to bring suspects to the trial chambers, which was alleged for crimes such as homicide and other offences that have been commonly labelled as International crimes. Identifying the hybrid elements of this court, it may be indicated that the staff involved in the working of the court are International persons as well as local Cambodians. The staff in the former statement may include judges, prosecutors and lawyers. There is a blend of International and local elements. The empowerment of the locals made the nationals have faith in the justice delivery system 14. While deciding a case in this tribunal, the system to give a judgment required the approval of at least one vote from an International judge from the bench, without which the judgment would not be binding. The funding of the court is done by the International community as well as the Cambodian Government hence ascertaining its hybrid character. On the killing of a Lebanese President Rafiq Hariri in 2005, an International tribunal was set up, famously known as the Haririri Tribunal or formally known as the 133

6 Special Tribunal for Lebanon was established upon an agreement between the Lebanese Republic and the United Nations as an independent organization so as to prosecute those responsible for the killing of the president 15. The court is bestowed upon with the status of being a Hybrid Tribunal possessing both International and domestic components. This tribunal practices through International laws for interpretation and reasoning of decisions along with local empowerment of the nationals in deciding upon the case. This court enjoys contemporaneous jurisdiction along with the national courts of the country. There was continuance of the tribunal even after the termination of the United Nation International Independent Investigation Commission. This court on the completion of the trial handed over its indictment to the Lebanese authorities. Unlike the other International courts, this court allowed for trials in absentia i.e., in the absence of either parties, the court proceedings were taking place. Extraordinary African Chambers 16 is the most recent hybrid tribunal that has been established in the year 2013 for essentially bringing a dictator liable for the offences he had committed in power and secondly to bring justice to those victims who are hampered by the crimes inflicted upon them. This tribunal is created in cooperation of the African Union along with United Nations. This tribunal has exclusive applicability of the International standards demarking its hybrid nature. The judges of the panel are also citizens from different country in order to have an impartial dispute resolution. Like other hybrid courts, this court has a jurisdiction limited to a specific period of time so as to restore the affected zone as it was prior to the commission of the crime that has an involvement of severe human rights abuse. Alongside it also takes care of the rights of the perpetrators to a minimum of the standards recognized by the International standards. TRANSITIONAL JUSTICE MECHANISMS ENCOMPASSED IN HYBRID COURTS Rendering transitional justice is not mandatory to be provided by every hybrid court however providing the same would elevate the community discourse and provide a healing mechanism to the victim 17. The transitional justice attempts to bring in a deterrent effect so that there is no future violation of the human rights. The mechanism begins with truth and reconciliation mechanism, documentation initiatives may be taken to secure the evidences and other documents and this kind of justice mechanism ends with reparation where in the suffered persons of the crime are given monetary compensation, so that they may attempt to restore themselves with the financial help. 134

7 TRUTH AND RECONCILIATION COMMISSIONS:- There commissions are said to have vital importance and are mandated to be a significant component of transitional justice. They are considered to be an official investigating body an official investigative body that documents a pattern of past human rights abuses [and] provides an alternative method of addressing a state s violent past when the violence resulted in widespread human rights violations that occurred amidst ethnic, racial, class, or ideological disputes over justice and power. 18 Considering its participation in hybrid tribunal mechanisms, it may be cited that the hybrid court of Sierra Leone was institutionally developed initially from the Truth and Reconciliation Commission with sustenance and aid from the United Nations Human Rights commission. The major objective of its inclusion is to bring about more benefit to the victims and to deliver justice to the persons affected by such crime. There is a scope of psychological benefits for the victims whose human rights have been violated, and which may not be restored by the courts. They are cost effective in comparison to other forms of justice. DOCUMENTATION: - To ensure accountability for International crimes, it would benefit the society to charge a criminal for his actions. These documents established by the state upon a body or a body corporate that could aid the tribunals findings upon the crime that the perpetrator is accused of. These documents may largely voice the victims and put forth their claims. These could help in stimulating the justice deliverance. It may be stated that that the Documentation Center at Cambodia had collected vast evidence in regard to the crime committed in Cambodia by the Khmer Rouge who had committed heinous crimes as a political leader 19. These documents proved to be of great importance while convicting the accused. The documentation consists of various interviews captured on web cameras of the victims, close personnel of the perpetrators, compiled information of the modus operandi. REPARATION:- The term reparation in its literal sense means any action done in order to make any amends for an inappropriate act already committed. Reparation means an act done in lieu of restoration. Such programs assist in recognizing the harm inflicted upon the victims. These reparations could either be in monetary terms or in non monetary terms such as moral acts. In the Khmer Rouge Tribunal in Cambodia also known as the extraordinary chambers of 135

8 Cambodia, moral reparations are said to be awarded to persons who are found guilty of an act alleged to have committed. This mode of application is submitted docketed along with an elucidation as to how the same could be carried out. Also in the special court of Sierra Leone, compensation is claimed 20 by the domestic courts on proper identification and scrutinizing the loss suffered by the victims and other damages 21. A trial may be conducted for victim from numerous countries. The Cambodian hybrid tribunal demands claims of the victims through their respective domestic courts subject to their domestic laws. There domestic courts are given the right to provide compensation enlightening the hybrid element of its existence. ROHINGAYA MUSLIMS Rohingaya Muslims are one of the most persecuted minorities in the world. According to many media reports, this community has been a victim of human rights violations under the military dictatorship since In Myanmar they are denied citizenship (1982 Citizenship Act), forced into manual labour and forbidden to marry without permission. As of today around 1,40,000 remain in camps and are suffering human rights violations. It is estimated that more than 80,000 Rohingay as have fled the mainland on boats, many die due to starvation after months of voyage at sea to seek refuge in countries like Thailand, Malaysia and Indonesia. Many of them have fallen victim to human traffickers. In 2009 there were reports suggesting that the Thai military was towing a boat of 190 people out to the sea. 23 There are media reports suggesting that the military personnel of these countries have beaten them. 24 Mass graves have been found in Malaysia where the Rohingaya Muslims have been held. 25 The Situation needs intervention of an international agency. A truth and reconciliation Commission should be set up to investigate into the matter and a report should be made public. The Perpetrators should be brought to Justice by prosecution. The most appropriate agency for such a trial would be a Hybrid court, which would have, trans-border Jurisdiction over the countries and some elements from the national legal systems of these countries could justify the establishment of the court. The crimes of Persecution, torture, murder, rape etc. can be tried on the basis of the evidence presented by the Fact Finding Commission. A neutral prosecutor from a foreign country would make the trial unbiased. The International community should make this as its mission till the last victim of such heinous crimes and human rights violations has been provided Justice. 136

9 CONCLUSION Not every other tribunal may be labeled as a hybrid tribunal. The key element for a court established on the International forum to be known as a hybrid is the Internationalization element. Internationalization includes the composition of the bench in terms of International judges for deciding upon the case, and the laws followed which has International and universal recognition and acceptance. Internationalization component is a crucial mechanism though which a resilient framework may be formulated for transitional justice deliverance. The tribunal established to be hybrid would be required to have a temporal insolence and a subject matter jurisdiction to contribute to its proficiency for consequent domino effect. Hybrid courts are mandated to ascertain minimum rights to the perpetrators in consonance to the International human rights that computed at the universal level in a way that equilibrium is preserved between the rights provided and the punishment for the acts done. Various theories of justice and reconciliation need to be adopted in a particular manner so as to form a hybrid tribunal. REFERENCES 1 Transitional justice refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human rights abuses. These measures include criminal prosecutions, truth commissions, reparations programs, and various kinds of institutional reforms. < on, 27 th April, United Nations Security Council Resolution 1315 (2000) on General, Sierra Leone to Negotate Agreement for creation of independent special court, Press Relapse SC/ Supra n. 2 4 Exploring the Legacy of the Special Court of Sierra Leone, Establishment of the Court < on 27 th April, 2015) 5 Audio Visual Library of International Law Statute for the Special Court of Sierra Leone 16 th January, 2002; Introductory Note < on 27th April, 2015) 6 Alison Smith, ICTJ s SCSL Legacy Podcast Series;< on 28 th April, 2015) 7 Resources from < (accessed on 4 th May, 2015) 8 Vide United Nations Interim Administration Mission in Kosovo [UNIAMK] Resolution 1244 in the year S/RES/1244(1999) Adopted by the Security Council on 10 th June, 1999 establishing its international presence in Kosovo. 10 United Nations General Assembly Resolution 57/ 228 for an Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea (June 6 th, 2003) 11 Extraordinary Chambers in the Courts of Cambodia Agreements Legal Documents; Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea[Para 1]; 6 th June,

10 12 Extraordinary Chambers in the Courts of Cambodia < (accessed on 7 th May, 2015 ) 13 International Crimes Database; Courts Hybrid < (accessed on 7 th May, 2015) 14 Understanding the hybrid elements of the Khmer Rouge Tribunal (2014)(1) < (accessed on 7 th May, 2015) 15 Public Documents relased online by Special Tribunal for Lebanon; (SLT-11-01) < (accessed on 17 th May, 2015) 16 Human Rights Watch (Doc.-2 nd August, 2006) )< (accessed on 13 th May, 2015) 17 Public International Law & Policy Group, Hybrid Tribunals: Core Elements ; (June 2013) < (accessed on 11 th May, 2014) 18 Ohio State Journal; Daniel J. Henedy; Truth Commission to Restoring peace in post conflict Iraq (2005) 19 Case file no. 002/ /ECCC/ TC Summary of Jugement Case Load 002/01 < 20ENG.pdf> 20 Mohamad Suma and Cristian Correa Report and Proposals for the Implementation of Reparations in Sierra Leone (December 2009) International Center for Transitional Justice 21 Supra n Conflict and Human Rights Rohingya; Ethnic Cleansing < burma/conflict-and-human-rights/rohingya-ethnic-cleansing.html> (accessed on 21 st May, 2015) 23 CNN World (2009) Thai PM admits boat people pushed out to sea < (accessed on 26 th May, 2015) 24 Supra n Tribune Wire Reports, Mass Graves Found in Malaysia where Rohingya Muslims have been held Chicago Tribunes (Bayeun, Indonesia; 24 th May, 2014) < (accessed on 21 st May, 2015). 138