Centre for Human Rights and Legal Pluralism

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 non-nationals?

·  Many of the embedded limitations (of both domestic and international) remain à 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 come-back.

·  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.