Hybrid Tribunals and the Composition of the Court: In Search of Sociological Legitimacy

Table of ContentsI. Introduction 484II. On Hybrid Tribunals 488III. The Principle of Fair Reflection and Sociological Legitimacy 494IV. International Criminal Tribunals and Local Judges 498A. The Ad Hor Tribunals-No Local Judges 500B. The International Criminal Court-Local Judges Not Guaranteed but Possible 504C. The Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia-Guaranteed Local Judges 508V. Towards a Greater Particularization of the International 513A. Geography and Legal Tradition 514B. Common Language 517C. Judicial Training Programs 518VI. Concluding Remarks 520I. INTRODUCTIONOn August 7, 2014, the government of the Central African Republic (CAR) and the U.N. Multidimensional Integrated Stabilization Mission in the Central African Republic signed a memorandum obligating the government to establish a "Special Criminal Court."' On April 22, 2015, the National Transitional Council, the country's interim parliament, adopted a law establishing such a court, and on June 3,2015, Catherine Samba-Panza, interim President of the CAR, promulgated that law.2 The Court will have jurisdiction throughout the CAR, and the authority to conduct preliminary investigations, judicial examinations, and to try "all war crimes and crimes against humanity committed on the territory of the Central African Republic since 2003."3 It will be comprised of twenty-seven judges, fourteen from the CAR and thirteen from other states.This significant development comes only sixteen months after the U.N. Mission in South Sudan recommended that a special or hybrid court be considered in order to "pursue genuine accountability" of perpetrators involved in the civil war that has raged since December 2013.4 One month before the issuance of that Report, in April 2014, a coalition of 146 national and international NGOs called upon the government of the Democratic Republic of the Congo (DRC) to pass draft legislation establishing a "Specialized Mixed Chambers" in an effort to "bring an end to Congo's history of rampant abuse."5 More recently, on August 3, 2015, Kosovo lawmakers passed legislation establishing "Specialist Chambers" comprised of international judges to try members of the Kosovo Liberation Army accused of atrocities against Serbs, Roma, and Kosovo Albanians who were suspected of collaboration with the Serbian regime.6 Additionally, on September 16, 2015, the U.N. High Commissioner for Human Rights recommended the establishment of a "hybrid special court" to address systemic human rights violations in Sri Lanka.7 After a period of dormancy,8 it appears that hybrid criminal tribunals have returned as a viable option in international criminal justice.9This should not come as a surprise. Despite facing a range of problems concerning design and implementation,10 hybrid tribunals still hold significant promise for many in the international criminal justice field11-not to mention for victims of international crimes. For countries suffering from systemic violations of international criminal law, hybrid tribunals are seen as offering the potential for a catalytic transition to normalcy based on a tripartite grounding of legitimacy, capacity building, and norm penetration.12 However, it is important to contextualize this shift back towards hybrid courts. Today, international criminal justice is suffering something of a crisis of legitimacy.13 The slow collapse of the case against Kenyan President Uhuru Kenyatta,14 the halting of investigations against Sudanese President Omar al Bashir,15 and the African Union's push to guarantee immunity for sitting heads of state16 are just three stark illustrations of the current dilemma. …