Hybrid Courts

By Suprateek Neogi
Suprateek Neogi is a fourth year student at Rajiv Gandhi National University of Law, Punjab studying Law and specializing in Business Laws.

​Hybrid Courts, also known as ‘internationalized national criminal courts’, are a unique type of ad-hoc court which has components of both, domestic and international legal systems. Hybrid courts usually deal with international crimes occurring within the domestic boundaries of a State. [1]​

Violations of jus cogens norms, which are universally accepted norms on human rights, like genocide, terrorism and other human rights violations are usually the subject matter of crimes before hybrid courts. In such cases, questions of jurisdiction are often complex. Due to the international nature of the crimes committed, they cannot be tried by domestic courts. In such situations, trials can either be held by international courts like the International Criminal Court (“ICC”) or by ad-hoc hybrid courts.

Since every nation is a sovereign, and recognizes no higher law than its own, they cannot be compelled to submit to adjudication under any international tribunal. Countries usually prefer adjudication by their domestic courts, which is not feasible in cases of violations of international law.

Despite jurisdictional issues and no recourse available in domestic courts, sometimes the affected countries still do not have faith in the international courts like the International Criminal Court (“ICC”). For instance, the ICC has been criticised by African nations claiming that it only investigates and prosecutes Africans, turning a blind eye to the so-called ‘first world countries’. [2] The ICC does not have legitimacy in the eyes of some countries. [3]

Contrary to purely international courts like the ICC, hybrid courts have legitimacy in the eyes of the stakeholders as they are established either by an agreement between the States and the United Nations (“UN”) or by bilateral agreements. They are set up on a case by case basis, usually in post-conflict situations pertaining to violations of international law.

So, in a situation where domestic and even purely international trials are not feasible, hybrid courts need to be set up.

Since hybrid courts primarily follow domestic laws, sovereign nations willingly repose their trust in them. It is a promising approach which addresses jurisdictional issues amongst sovereign nations and enforces justice as per respective domestic laws. [4]

One such example is of the Kosovo Specialist Chambers and the Special Prosecutors Office. These institutions were temporary and had jurisdiction over certain crimes against humanity, war crimes and other crimes under Kosovo law which allegedly occurred between 1 January 1998 and 31 December 2000. The Specialist Chambers have a seat in The Hague, the Netherlands, and was staffed with international judges, prosecutors and staff. [5]

In the “Lockerbie” case, two Libyan nationals were tried by Scottish law in a neutral location, i.e., Netherlands, despite claims of jurisdiction over the trial by US and UK. The accused had bombed a Pan Am aircraft flying over Lockerbie, Scotland, killing more than two hundred people. The United States wanted to try the accused as the aircraft was of the US and the United Kingdom wanted to try the accused as the aircraft crashed on their soil. After two years of diplomatic manoeuvring by all the stakeholder countries, a hybrid court was set up to try the two accused Libyan nationals by Scottish law in a neutral location, i.e., the Hague, Netherlands. [6]

A unique example is the “Special Court" set by the government of Sierra Leone and the UN. The Special Court was set to address serious international war crimes against civilians and UN peacekeepers committed during the country's decade-long (1991-2002) civil war. This court was dealt purely with international law but was established by a domestic statute. [7]

We can see that there is no hard and fast rule regarding how an ideal hybrid court should be instituted and what blend of international and national laws should be achieved. [8] Hybrid courts combine in various ways the application of international crimes and international personnel, while retaining significant national features. [9] The composition of the blend would depend on the situation of the State as explained by the examples. [10]

In view of this, certain types of hybrid courts can be distinguished. One type would consist of “internationalized” domestic courts which are part of the domestic judicial system like the Kosovo Specialist Chambers and the Special Prosecutors Office. Another type would include international ad hoc tribunals which have national elements like the special court set up in the Lockerbie case. [11] Sierra Leone also sets a different model of a hybrid court. It was a national court dealing with international crimes.

Despite having legitimacy in the eyes of the affected parties, hybrid courts may not be recognized by other third party States as they do not benefit from compulsory cooperation like purely international courts mandated by the United Nations Security Council (“UNSC”). [12] The decisions of these courts are not binding on any third parties. Operations of hybrid courts in East Timor, Sierra Leone and Kosovo have to a larger or lesser extent been hampered by this feature. [13]

Such situations can be avoided. If the UNSC determines that the lack of cooperation by third States constitutes a threat to the “maintenance of international peace and security”, [14] in accordance with the rationale of the Charter of the UN, it can oblige States to cooperate with any court, including hybrid courts.

​Hybrid courts are a unique solution to resolving jurisdictional and related political issues in case of international crimes. However, hybrid courts’ can be more effective if the UN and its affiliated bodies more actively support the implementation of the decisions of various hybrid courts.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
[1]  Carroll, Caitlin.  “Hybrid Tribunals are the Most Effective Structure for Adjudicating International Crimes Occurring Within a Domestic State”, Law School Student Scholarship, Seton Hall University (2013): 90. Last accessed date September 22. https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1090&context=student_scholarship.
[2]  Hart, Laurel. “The International Criminal Court: biased or simply misunderstood?,” United Nations Association – UK. Last accessed date September 22. 2019.https://www.una.org.uk/magazine/2018-1/international-criminal-court-biased-or-simply-misunderstood.
[3]  S. Nouwen, “‘Hybrid Courts’ The Hybrid Category Of A New Type Of International Crimes Courts”, Utrecht Law Review, Volume 2, Issue 2 (2006), Last accessed date September 22. https://www.utrechtlawreview.org/articles/10.18352/ulr.32/galley/32/download/.
[4]  Dickinson, L. “The Relationship between Hybrid Courts and International Courts: The Case of Kosovo”, New England Law Review (2003): 1059-1072, 1060. Last accessed date September 22, 2019. http://grocjusz.edu.pl/Materials/_archiwum/archiwum2014/js_sem_20150410_A.pdf.
[5] “Kosovo Specialist Chambers & Specialist Prosecutor's Office”. Last accessed date September 22, 2019. https://www.scp-ks.org/en.
[6]  Scharf, Michael. “A Preview of the Lockerbie Case”, American Society of International Law – Insights, Volume 5, Issue 5 (2000). Last accessed date September 22, 2019. https://www.asil.org/insights/volume/5/issue/5/preview-lockerbie-case.
[7]  “Its History and Jurisprudence”, Special Court for Sierra Leone. Last accessed date September 22, 2019. http://www.rscsl.org/.
[8]  Muharremi, R., “The Kosovo Specialist Chambers and Specialist Prosecutor’s Office”, Heidelberg Journal of International Law, Volume 76 (2016): 967-992. Last accessed date September 22, 2019.  https://www.zaoerv.de/76_2016/76_2016_4_a_967_992.pdf.
[9]  Reiger, C. “Hybrid and Internationalized Tribunals”, in: Giorgetti C. , International Litigation in Practice, Volume 4: Practice and Jurisprudence of International Courts and Tribunals (2012), Last accessed date September 22, 2019. https://www.researchgate.net/publication/284780842_Hybrid_and_internationalized_tribunals.
[10]  Supra note 3.
[11]  Supra note 6, p 969.
[12]  “UN Doc. S/2004/616”, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: 1, Last accessed date September 22, 2019. https://www.securitycouncilreport.org/un-documents/document/pcs-s-2004-616.php.
[13]  Kleffner, J. et al., “The Relationship between Internationalized Courts and National Courts”, in: C. Romano et al. (eds.), Internationalized Criminal Courts and Tribunals (2004): 359-378, 378, https://works.bepress.com/andre_nollkaemper/20/.
[14]  Charter of the United Nations, Art. 48.