The ad hoc and hybrid tribunals

In reaction to the violence of the conflict that was taking place in the former Yugoslavia, the United Nations Security Council decided to create an international tribunal called the “International Criminal Tribunal for the former Yugoslavia”(ICTY). It was the first war crimes court created by the United Nations and the first international war-crimes tribunal since the Nuremberg and Tokyo tribunals at the end of the Second World War. The ICTY was established on the basis of Security Council resolution 827 of 25 May 1993, adopted under Chapter VII of the United Nations Charter. This was the first time that the Security Council considered that the creation of an international tribunal was a potentially useful method to restore and maintain peace and security in a given country. One year later, in 1994, the Security Council created, in a similar fashion to the ICTY, a second international tribunal in order to prosecute those responsible for genocide and other serious violations of international humanitarian law that had been committed in Rwanda between 1st of January and 31st of December 1994. In 1998, the International Criminal Tribunal for Rwanda (“ICTR”) handed down the first-ever verdict on the crime of genocide by an international court, as well as the first-ever sentence for that crime. The ICTY and ICTR share common characteristics, which make them truly international. These characteristics directly flow from the fact that these ad hoc Tribunals were created by virtue of a United Nations Security Council resolution. Let’s briefly identify these main characteristics. First, both the ICTY and ICTR are composed of international judges, that is: judges who do not come from the countries in which the crimes have been committed (i.e. the former Yugoslavia or Rwanda). The Prosecutor of these Tribunals is also international. Second, both tribunals have jurisdiction over international crimes, that is: war crimes committed in international or non-international armed conflicts, crimes against humanity or genocide. Thus, criminal offences drawn from domestic penal codes are not prosecuted and tried by these institutions. Third, the procedure followed by the ICTY and ICTR is supposed to be purely international, at the intersection between common law and civil law traditions. This entails that the procedure does not mirror national systems of procedure that are applied in the concerned States. Fourth, as the resolutions constituting those Tribunals are taken under Chapter VII of the United Nations Charter, all Member States are bound to cooperate with these Tribunals. In other words, all Member States are obliged to comply with any requests addressed to them by the ICTY and ICTR, for instance, to arrest or to transfer an accused person located on their territory or to collect evidence. Fifth, these tribunals are usually seated outside the countries in which the crimes falling within their jurisdiction have been committed. The ICTY is in The Hague (The Netherlands) and the ICTR in Arusha (Tanzania). Lastly, as they are subsidiary organs of the Security Council, they are both financed by the United Nations. At the end of the 1990’s and at the beginning of the 2000’s, faced with several new emergency situations involving the commission of large-scale atrocities, the United Nations and States preferred to resort to courts created on the basis of bilateral agreements, with the terms negotiated between the UN and the concerned State. These tribunals are mixed in nature, combining international and national systems of criminal law and procedure. They are often called “hybrid” or “mixed” tribunals or courts, such as the District Courts of Dili (East Timor), the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, or the Special Tribunal for Lebanon. As explained by Professor Cassese, the aim of this initiative was “to establish lean and agile courts sitting in the territory where crimes had been committed (…) which would be relatively inexpensive or only tasked with prosecuting and trying those most responsible for the crimes perpetrated”. This entails that such hybrid courts or tribunals share a number of common features with the purely international tribunals that we have just examined. Like the ICTY and ICTR, they are ad hoc institutions, created to address particular situations, for a limited amount of time, and are the result of singular political and historical circumstances. But some other characteristics set them apart. Indeed, as we have just seen, they are no longer created by resolutions of the United Nations Security Council. They are the result of agreements negotiated between the United Nations and the concerned States. This entails that they are clearly integrated into domestic systems. In some cases, they are organs of the relevant State, forming part of its judiciary. This applies to the District Courts of Dili or the Extraordinary Chambers in the Courts of Cambodia. Others operate in parallel to the local judicial system, such as the Special Court for Sierra Leone or the Special Tribunal for Lebanon. But in all situations, their nature is mixed, incorporating at the same time international and national features. They are all composed of international and local judges, apply a compound of international and national substantial and procedural law – hence the term “hybrid” tribunals – and are usually located in the countries where the crimes have occurred. But more importantly, as they are created by bilateral treaties, there is no obligation of third States to cooperate with them. Finally, as they are not grounded into the United Nations system, they are not financed by the UN, but by voluntary contributions of States.

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