Vrije Universiteit Brussel (VUB) – Institute for European Studies Academic Year 2017-2018The Viability of Hybrid Court models in AfricaMaster Thesis submitted for the degree of the Advanced Master of Law (LL.M.) in International and European LawWritten by Ariyo Olatunde AbdulAzeezPromoter: Prof. Paul De HertReader: prof. Stefaan SmisWord Count: 21,271I hereby declare that the work submitted is mine and that where I have made use of another’s work, I have attributed the sources according to the Regulations set in the Student’s HandbookARIYO OLATUNDE ABDULAZEEZ16TH AUGUST 2018TABLE OF CONTENTS1. AN OVREVIEW OF THE STUDY1.
1 Problem Statement1.2 Significance of the Study1.3 Research Questions1.4 Objective of the Study1.5 Literature Review1.6 Chapter Outline of the Research Paper1.
7 Research Methodology2. GENERAL OVERVIEW OF MODEL COURTS FOR INTERNATIONAL CRIMINAL JUSTICE IN AFRICA 2.1 Introduction2.2 Conceptualising international criminal Justice systemThe International Criminal Tribunal (International Criminal Tribunal for Rwanda, ICTR 2.
3.1. Jurisdiction/Applicable Laws to ICTR 2.3.2. Contributions of ICTR to Development of International Criminal Justice in Africa 2.
3.3. Criticisms of the International Criminal Tribunal for Rwanda 2.3.4.
The Gacaca Courts2.4 The Impact of the International Criminal Court in Africa 2.4.1.
Invoking the Jurisdiction of the ICC 2.4.2. The Judicial Process at the ICC 2.
4.3. Criticisms of the International Criminal Court 2.5 Closing Remarks3. AN OVERVIEW OF HYBRID COURTS3.1 Introduction3.2 The creation and examples of hybrid courts 3.2.
1. Creation of the Hybrid Court in Cambodia, the Extraordinary Chambers in the Court of Cambodia (ECCC)3.2.
2. Creation of the Hybrid Court in Sierra Leone, the Special Court of Sierra Leone (SCSL)3.2.3.
Creation of the Hybrid Court in East Timor3.2.4 Creation of Hybrid Tribunals in Kosovo3.2.5. Creation of the Hybrid Court for Lebanon3.
3 Achievements of Hybrid Courts.3.3.1. Appointment of Personnel3.3.2.
Hybrid Laws3.3.3. Location of Tribunal, UN Involvement and Financial Autonomy3.4 Strengths of Hybrid Courts3.5 Criticisms of Hybrid Courts 3.6 The Place of Hybrid Courts in the Age of the International Criminal Court 3.7 Closing Remarks 4.
The Viability of Hybrid Courts in Africa4.1 Introduction4.2 Special Court of Sierra Leone4.2.
1 Background to Establishment of the Special Court for Sierra Leone (SCSL)4.2.2 Creation of SCSL4.2.3 Jurisdiction/ Applicable laws and structure of SCSL4.2.4 Criticisms of the Special Court for Sierra Leone4.2.
5 Impact of Special Court for Sierra Leone (SCSL)4.3 The Extraordinary African Chambers in the Courts of Senegal (EACCS)4.3.1 Background to the Establishment and Creation of the EACCS4.3.
2 The Jurisdiction/Structure of the EACCS.4.3.3 The Impact of the EACCS on Africa4.4 Concluding Remarks 5. Summary of findings, Conclusion & Recommendation5.1 Summary of Findings 5.2 Conclusions5.
3 RecommendationCHAPTER ONEGENERAL INTRODUCTION1.1 Problem StatementThe primary purpose of international criminal justice is to end impunity. Impunity has become a source of concern to the United Nations (the UN) and the world as a whole. The UN has said that there must be “…an end to the global culture of impunity – the culture in which it is easier to bring someone to justice for killing one person than for killing 100,000”. In order to combat impunity, the International Criminal Court (the ICC) was established. Out of the 123 countries that are party to the Rome Statute, a multilateral treaty which created the ICC in 2002, 34 are Africans. Most of, if not all of the indictments and prosecutions by the ICC from its inception till date have been against Africans: from the indictment of Joseph Kony on the 8th day of July, 2005, Thomas Lubanga Dyilo in 2012, Germain Katanga in 2014, Ahmad Al Faqi Al Mahdi in 2015, to its most recent indictment of Al Hassan Ag Abdoul Aziz on the 31st day of March, 2018, the ICC.
It would appear that the ICC only has eyes for Africans. Also, sitting in The Hague, the ICC is far away from the locus criminis. It took the ICC ten years to reach its first verdict. These challenges have caused a legitimacy crisis for the ICC.Ad hoc tribunals have also been created to serve the same end as the ICC. These Tribunals were the International Criminal Tribunal for former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and were set up by the UN Security Council which ultimately paved way for the creation of the International Criminal Court (ICC). The Tribunals were set up to assert international preeminence over the courts in the domestic countries. However, these ad hoc tribunals have been criticized and one of the major criticisms is that they do not respect states’ sovereignty.
Similarly, another major challenge of these Tribunals is the fact that trials occurred outside the domestic states, away from the locus of crime, and thus created a distance between perpetrators of crimes and victims from the locus of crime (home state) to a foreign country. These challenges created a lacuna with aforementioned tribunals. In order to seal up this lacuna, there was the creation of Hybrid Courts or Hybrid Tribunals in the domestic countries where war crimes have been reported to have occurred.
Hybrid Courts are courts “of mixed composition and jurisdiction, encompassing both national and international aspects, usually operating within the jurisdiction where the crimes occurred”. With Hybrid Courts, foreign judges sit alongside domestic judges to decide upon matters that border around international crimes. The judges apply both local and international law. This is because the Hybrid Courts are flexible to accommodate elements of existing criminal law while addressing international human rights violations.The emergence of Hybrid Courts can be traced to the late 1990s and early 2000s, and since then their viability has been examined. These Hybrid Tribunals include the Extraordinary Chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, the Special Court and the Residual Special Court for Sierra Leone and Special court of Central Africa Republic.
The main advantage of these Tribunals is that they have been set up in post conflict situations and thus can apply domestic law that has been reformed in accordance with international standards. In Africa, the Hybrid Tribunals have been gaining prominence. These Tribunals are, to wit: the Special Court and the Residual Special Court for Sierra Leone, Special court of Central Africa Republic, and Extraordinary Chambers in the Courts of Senegal. In fact, recently, the Extraordinary African Chambers, a special kind of Hybrid Tribunal, opened in 2013 in Senegal to handle a case against the former president of Chad Hissene Habre for his international crimes committed during his presidency.
In a swift reaction to the heinous war crimes committed under the reign and complicity of the former President of Chad, Hissène Habré, the African Union empanelled a hybrid tribunal known as the Extraordinary African Chambers (EAC). Under a deal with Dakar, the Chadian dictator was tried for war crimes in what observers have applauded as a successful experiment in self governance by the 54 state African Union. In May 2016, the Mr. Habré was found guilty and sentenced to life imprisonment.
He has since appealed. The EAC is the first example of a hybrid court supported by a regional organization, such as the AU, as opposed to the global body, the UN and its success in trying and convicting the Chadian dictator, has spoken to the viability of the hybrid tribunal, as an important special court for securing international criminal justice. The viability of the Hybrid Courts in Africa in the midst of daunting challenges is the crux of this study.1.2 Significance of StudyThe main significance of this research is to show how viable and achievable Hybrid Courts in Africa are in settling international crimes and violations of human rights. As it has been stated, the essence of the creation of Hybrid Courts is to allow the perpetrators of crimes to face justice in the locus of crime.
The many challenges of the ICC in actually getting justice to the victims of war crimes have led to the urgent need for the Hybrid Courts.In Africa, the development of Hybrid Courts has been a laudable one in the establishment and maintenance of the rule of law. The work of these Tribunals in Countries like Sierra Leone, Central African Republic and Senegal has been lauded by international observers and jurists. While the court has had its fair share of criticism, it appears that the credibility and legitimacy concern is not its problem. It took the Extraordinary African Chambers (EAC) three years to reach a widely accepted verdict on the criminal complicity of former Chadian President Hissène Habré. The Special Court of Sierra Leone also completed its over 23 cases, including the 50-year sentence handed down to Charles Taylor, within a decade. While some have argued that legitimacy should not, and is not, the thrust of any institution empanelled to do justice in the times of war, it is important that justice must not only be done, but it must be seen as having been done by those who are victims of the international crimes for which the international criminal court and tribunals exist.
So far, the hybrid court has scored highest in this regard thus making it the most viable option for Africa. The analysis of these Tribunals in Africa in promoting the rule of law is the purport of this work.Therefore, this thesis explores the viability of the Hybrid Tribunals in Africa and how achievable their goals are in administering justice. Hence, it is important to add to existing literature on the subject.1.
3 Research QuestionsFor the purpose of this study, the following questions will be answered, to wit:Does international criminal justice face prosecution challenges?How viable are hybrid courts in addressing this prosecution challenge?To what extent is the hybrid court model in fostering an increased appreciation for international criminal justice in Africa?1.4 Objectives of this StudyThis researcher aims to achieve the under listed by the end of this study:Examination of the prosecution challenges faced by international criminal justice.The legal analysis of the viability of hybrid courts in addressing the prosecution challenges inherent in international criminal justice.Determining the extent of hybrid court model in fostering an increased appreciation for international criminal justice in Africa.1.5 Literature ReviewThere has been an abundant literature on the subject, from authors giving a general overview to the ones arguing against their establishment, and to the ones who try to show the extent of their viability. So much has been written about the legitimacy of the ICC and its work. After several indictments, charges and prosecutions, all of Africans, volumes of literature have been written on the ICC.
International criminal tribunals like the International Criminal Tribunal for Rwanda have also been extensively written about. The International Criminal Tribunal for Yugoslavia is also another point of reference for the use of International Criminal Tribunals in securing international criminal justice. So there is no dearth of literature on the courts and the tribunals. Same applies for the hybrid courts/tribunals too. De Bertodano states that the literature available on the hybrid courts can be streamlined into those of the proponents of the court’s model based on its success and those by the opponents of the courts model based on its failures. The difficulty associated with the prosecution of international crimes is based on the fact that there is currently no permanent universal institution to implement international criminal law. The ICC was created as a possible institution to fill this void, but it has suffered credibility issues and is currently facing legitimacy concerns.
It is worthy to note that it took the ICC ten years to come up with its first verdict.Carroll is of the opinion that hybrid courts are the most effective structure for adjudicating international crimes that occur within a domestic state because they best blend domestic actors and norms while respecting international jus cogens norms. The involvement of domestic penal codes and jurisdiction respects state sovereignty and retains the cultural and political expectations of both the perpetrators and the victims. But this is not to say that the hybrid courts are without faults. However, while there are several literature available on the need for hybrid courts and the advantages of hybrid courts over the ICC and the International criminal tribunals in meeting the needs for criminal justice in Africa, there are no literature on an overview of the extraordinary feat achieved by the Extraordinary African Chambers and the decade long work of the Special Court of Sierra Leone, which is now in residual mode. In showing the promise of the hybrid court model, Dickinson posited that the hybrid court model promises to be a good fit for legitimacy and particularly for their ability to harmonize local efforts in establishing the rule of law and the development of human rights in developing countries.
Similarly, Higonnet, Wlliams, McAuliffe, and others have also shared this view.However, this research will not only give a general overview of hybrid courts in Africa, but also analyze their viability. I will also be adding to existing literature on the subject.1.6 ChapterisationThis thesis is broken down into five chapters.
Chapter one provides a general overview of the subject matter. It also provides a statement of the problem and how significant the study is. In the same vein, it sets out the research questions and how they are going to be answered. Chapter two does a general overview of the models of international criminal prosecutions in Africa. It talks about the evolution of international criminal tribunals. In particular, it will analyse the purpose for the establishment of the tribunals, the mode of creation, their criticisms, and strengths and their impact on the African continent.Chapter three gives a general overview of Hybrid Courts and the legal implication of having them. Furthermore, it will explore the salient characteristics, functions, the achievement and criticisms of these courts over the years.
Chapter four discusses in details the establishment of Hybrid Courts in Africa. It also explores the different kinds of Hybrid Courts that exist in Africa and their viability. In addition to what they have been able to achieve, this research seeks to also explore their criticisms also compare them both in structure and activities. This is to show how achievable they are.Chapter five summarizes the authors’ findings, recommendations and conclusions.1.7 Research MethodologyThis study is an expository one. This study will review literature on international criminal justice and hybrid courts, particularly in Africa.
It shall be carried out using the primary and secondary sources of information.The primary sources would include an extensive and intricate analysis of judicial authorities, statutes and statutory instruments, government policy statements as embodied in circulars and official gazettes. The secondary sources of information are relevant articles in learned journals, books, magazines and newspapers. Using this literature review method will not only allow me to ascertain the state of knowledge on hybrid courts in Africa, but also to justify its viability, as well as proffer realistic and attainable solutions to many of their criticisms which may be adopted.CHAPTER TWOGENERAL OVERVIEW OF MODEL COURTS FOR INTERNATIONAL CRIMINAL JUSTICE IN AFRICA 2.1 Introduction The need to prosecute international crimes committed on the African continent through an efficient and effective institution that secures justice to the victim, society and the suspected suspected/accused international criminal has been a hot topic for decades. Its importance is undergirded by the fact that several atrocities of gigantic magnitude had been perpetrated on the continent with impunity. However, international criminal justice is a very broad and complex enterprise which must be approached with the utmost ingenuity that it deserves.
Bearing in mind that international crimes are always committed within sovereign territorial entities with their own criminal justice system, securing justice through a balanced institution that is sociologically contextualized and legitimately recognized by most, if not all, stakeholders has proven to be an onerous task. This chapter examines the legal and sociological issues that underpin the institutional models leading to the formation of all the tribunals that had, so far, been set up for the administration of international criminal justice on the African continent. It focuses on the particular successes, challenges and drawbacks encountered by each institutional model within the African context. 2.2 Conceptualising International Criminal Tribunals in AfricaAn international criminal tribunal charged with the prosecution of persons deemed most responsible certain conducts considered as serious atrocities against humanity as a whole wherever these are perpetrated. International crimes are generally believed to include war crimes, crimes of aggression, crimes against humanity, and genocide. These tribunals are charged with the enforcement of international criminal law.
However, it has been difficult to prosecute international crimes due to many factors. While the existence of the International Criminal Court is duly acknowledged, one of the factors militating against the security of international criminal justice is that there is currently no “universally accepted and permanent” tribunal for the prosecution and enforcement of international criminal law.But it can be said that international criminal justice is not only concerned with the widely held notion that punitive retribution is the traditional end of criminal justice, rather it ought to contextualize itself within the concept of transnational justice in which it is situated not only to end impunity but also to ensure the rehabilitation of post conflict states into functional democracies. In this wise, efforts are required beyond the duration of criminal trial to engage the local population in setting up and maintaining democratic institutions such as an impartial, respected and competent local judicial system.
There is no gainsaying that local participation and extent of the involvement of local stakeholders in the tribunal’s adjudicatory process goes a long way in the realization of the tribunal’s ultimate goal which is keeping the peace through a strong, virile judicial system, after the tribunal’s mandate has been expended. Since justice must be situated within a particular context in order to have meaningful impact, it is important that the persons most affected by the decisions of the tribunal perceive the tribunal as a fair and impartial arbiter and dispenser of international criminal justice. Hence, it has always been important that tribunals empanelled to adjudicate over international crimes committed on the African continent and elsewhere ought to be set up and run in a way and manner that secures efficient dispensation of justice to all the stakeholders within the shortest possible time. It is important that stakeholders pay adequate attention to factors that might militate against quick dispensation of justice. The process used in the creation of an international criminal tribunal, the manner in which the created tribunal is set up and run, trial procedure of the tribunal, the structure of the tribunal and the extent to which local ideologies and philosophies about justice are incorporated into the composition of the tribunal in terms of judicial officer and even the corpus juris to be used by the tribunal go a long way in ensuring that the mandate of the tribunal is adequately delivered. The composition of the tribunal’s registry and the extent to which local presence is incorporated into its ranks ensures that the tribunal is not perceived as a foreign imposition. These considerations are particularly pertinent in Africa where international criminal justice is often perceived as an external imposition that has little consideration for the peculiar personality of the continent.
In order to achieve the end of justice, different models of international criminal tribunals had been used on the African continent. To this end, it may be safe to say that three distinct models had been used for the achievement of international criminal justice in Africa: The World Court Model (ICC), the International Criminal Tribunal (ICTR) and the Mixed or Hybrid Criminal Tribunal (SCSL). The following sections illustrate the evolution of these models, their successes and drawbacks and how Africa has interacted with these models. 2.3 The International Criminal Tribunal (International Criminal Tribunal for Rwanda, ICTR)Prior to the assassination of President Juvenal Habyarimana of Rwanda and President Cyprien Ntaryamira on the evening of 6 April 1994, Rwanda had enjoyed a fragile peace. The peace had been established vides the Arusha Accord but when the plane carrying the two Presidents was shot down over from the Kigali skies on that day, the Arusha Peace Accord, brokered in the hope of ending the armed conflict between the Rwandan Government and the Rwandan People’s Front broke down irretrievably.
Unimaginable violence and bloodbath overtook the country during the next 100 days that followed the unfortunate event. Genocide, crimes against humanity and war crimes were perpetrated by soldiers, politicians, interahamwe, and ordinary civilians against moderate Hutus and Tutsi civilians. By the time the massacre abated, between eight hundred thousand – one million men, women and children had been brutally bludgeoned to death by Hutu extremists.
On 8 November 1994, the United Nations Security Council established the International Criminal Tribunal for Rwanda to prosecute the persons responsible for planning and carrying out the genocide and other grave violations of international humanitarian law in Rwanda committed in the territory of Rwanda and neighbouring states between 1 January and 31 December 1994. The primary mandate of ICTR is to hold actors and perpetrators in the genocide and other international crime perpetrated during the period, accountable for their conduct. This will ‘contribute to the method of national reconciliation and to the restoration and maintenance of peace. Justice should serve as the beginning of the end of the cycle of violence that has taken so many lives, Tutsi and Hutu, in Rwanda.’ It was believed that international prosecution of those accused for being most responsible for the Rwandan atrocities would beam the global searchlight and create the global platform believed to be necessary for underscoring the magnitude of the atrocities committed and to prevent occurrence of such atrocities in Rwanda and anywhere else. 2.3.
1. Jurisdiction/Applicable Laws to ICTRIn bid to guarantee that the tribunal delivered on its onerous task, the ICTR was mandated with jurisdiction over genocide, crimes against humanity and any violation of Article 3 which was common to both the Geneva Conventions and Additional Protocol II. 2.3.2. Contributions of ICTR to Development of International Criminal Justice in AfricaSince its establishment, the ICTR has made numerous contributions to the development of international criminal justice in Africa. For instance, it was through the ICTR that a factual account of all the events leading to the unfortunate criminality perpetrated in Rwanda in 1994 became established. ICTR ensured that criminal responsibility was individually assigned to the perpetrators of the Rwandan genocide thereby ridding the community of the stigma of collective criminalization.
By holding those responsible individually liable, particularly the leaders of thought who shaped the narrative leading to the genocide and led the bloodshed, the ICTR ensured that a whole people are not defined by the criminality of few. The ICTR prosecuted several notable figures including its most prominent defendant, Jean Kambanda, who was the Prime Minister of Rwanda in 1994 when the genocide occurred. Mr. Kambanda was one of the first heads of government to be successfully convicted for war crimes, genocide and crimes against humanity in Africa.
The ICTR also gave a voice to the victims and their community by providing an avenue for the ventilation of their personal and collective grievances. Their experience of suffering and holding the perpetrators of the crimes accountable has led to the restoration of law and order and the rule of law in Rwanda. The ICTR has also contributed to the growth of Rwandan jurisprudence. There are several changes and developments which occurred in the judicial system of Rwanda to bring the Rwandan legal system in conformity with international standards and best practices in anticipation of the possibility of the handover of the Tribunal’s cases to the national courts. For instance, Rwanda has since abolished the death penalty in anticipation of the extradition of genocidaires and their prosecution by the national courts in Rwanda. However, despite all these contributions, the ICTR also faced extensive criticisms, drawbacks and challenges. The government and people of Rwanda as well as the international community have plagued the ICTR with criticisms from its inception to date.
Despite the fact that the government of Rwanda initiated the Tribunal’s existence by requesting the UN to establish it for the sake of prosecuting genocide suspects, it has been its staunchest critic. Accusations ranging from mismanagement, corruption and incompetence were the major points for criticism in its initial stages, but since then, the ICTR has also been criticized for a number of other reasons which eventually culminated in the alienation of the victim community and its primary beneficiary, the people of Rwanda. 2.
3.3. Criticisms of the International Criminal Tribunal for Rwanda The primary criticism of the ICTR immediately after its inception and which continued till later on in the Tribunal’s life was the accusation that the Tribunal was very slow and expensive. With a well above 90 Million US Dollars and over 800 employees, the Tribunal was criticised for being a medium for diversion of enormous resources which critics believed could have been used for the development of the battered and shattered judicial institutions in Rwanda. In 2013 when the Tribunal was winding down its mandate, its annual budget was still an exorbitant 170 Million US Dollars and the Tribunal was manned by over 600 employees.
The obscenity of this expense becomes more obvious when compared with genocide prosecutions elsewhere. For instance, a universal jurisdiction prosecution of a Rwandan genocidaire in Canada cost just 1.3 million dollars in comparison with an ICTR trial which costs as much as 22.6 million dollars. When compared with similar trials in Rwanda, the costs are even bleaker.
The reluctance of the United Nations to continue bearing the bulk of the cost of these Tribunals is a major reason for the call for departure from ad hoc tribunals to a more pragmatic model known as the hybrid courts model. As if the foregoing obscene expensiveness of the ICTR was not enough, the judicial process of the Tribunal has proven very slow over time. In the first seven years after its establishment and more than four years since the beginning of the first trial, the ICTR had handed down verdicts on only nine individuals. The handsomely paid judges of the Court went for as long as 28 months without hearing a substantive matter. Furthermore, the decision of the United Nations to situate the ICTR in Arusha Tanzania for reasons, particularly security, opened the Tribunal to criticism for being physically and culturally detached from the people of Rwanda.
The Rwandan government had hoped for a court to be located in Kigali, which allowed the Rwandan judiciary to play a key role The fact that the Tribunal was located outside Rwanda also drew the ire of the Rwandan people because the victim community had anticipated that the perpetrators would be brought to justice on the same grounds where they had committed the heinous crimes of the Rwandan genocide. Some victims have also found the Tribunal to be unsupportive, foreign and sometimes out rightly offensive to their local sensitivities. In response to this leg of criticism, the Tribunal created an outreach program but the outreach program was considered a tad too little and too late to address the valid grouses of the victims against the Tribunal.
The Outreach program has also been denounced for being too far away from the existent realities on ground in the victim communities. The program has variously been described as “ineffective and one-sided” to the extent that the outreach consisted mostly information being handed down without due consideration and interaction with the local communities. It had been suggested that a more appropriate approach would be an outreach program that consistently interacted with the community with a Tribunal staff that is frequently engaged with the population. This would open a useful line of impactful exchange between the Tribunal and the victim community and would also serve as a link in providing sufficient information to the Rwandan people on the workings of the ICTR. But perhaps the most significant failure and criticism of the ICTR is its unwillingness to prosecute war crimes and crimes against humanity committed by the Rwandan Peoples Front (RPF), the rebel group which was engaged in a civil war with the government of Rwanda at the time, that has been credited with ending the genocide in 1994 and has been in political power ever since.
This failure and flaw in the justice mechanism of the ICTR has further reinforced and promoted the accusations that only the victor gets justice. The ICTR has also been criticised for being a justice mechanism for the achievement of political ends and political manipulation rather than being a legitimate judicial process for the ventilation of legitimate grievances. By refusing to bring any member of the RPF responsible for the crimes of war committed by them, many, particularly international observers and local Hutus, have formed the opinion that the prosecutorial agenda of the Tribunal is controlled by the Tutsi-led Rwandan government. This gravely affected the legitimacy of the ICTR both locally and internationally. In 2008, the ICTR Prosecutor, Hassan Jallow, transferred the investigation of a massacre of clergy in Kabgayi by RPF soldiers to the Tutsi-led government of Rwanda for prosecution. This resulted in a shambolic trial that was riddled with so many evidentiary loopholes in a blatant effort to protect ranking RPF members from criminal responsibility.
In spite of this apparent drawback, the Jallow held his ground that the trial had been fair and that the prosecutorial arm of the ICTR would not be prosecuting any other RPF cases. It has also been alleged that the ICTR is deliberately ignoring crimes committed by the Tutsis during the genocide.The ICTR has also been criticised for being alien to the Rwandan sensitivities and that its rules of evidence and procedure were not situated in Rwandan context thereby propagating the notion that the Tribunal was an alien imposition. In a seemingly blatant disregard for the peculiarity of the Rwandan context, the ICTR wholly adopted the rules of evidence and procedure used by the International Criminal Tribunal for the Former Yugoslavia (ICTY). The Judges and Prosecutor of the ICTR were appointed by the United Nations General Assembly from a list provided by the United Nations Security Council. All these important decisions with regard to the Tribunal were taken without the involvement of the Rwandan people thereby lending credence to the opinion that the Tribunal is a foreign imposition by the West on Rwanda.
Further, after the conviction of the accused persons, the punishments meted out to the genocidaires convicted at the ICTR differs greatly from those convicted in Rwandan courts. The Rwandan national criminal courts have successfully prosecuted more than ten thousand genocidaires and a number of those convicted received the death penalty and were executed. But the ICTR prescribed far more lenient sentences for those convicted of similar crimes at the Tribunal. The conditions under which the criminals convicted in the ICTR serve their terms of punishment by way of incarceration is also far more comfortable and superior to that of those convicted by the national criminal courts of Rwanda who serve their own terms in Rwandan Prisons and villages. The detachment which the convicts of the ICTR enjoy is also another cause for concern because justice ought not only to be done, it ought also to be seen as having been done, particularly by those who had been the most concerned by the acts constituting the criminality for which justice was now being served.
The Tribunal also fell short of the mandate given to it by the people of Rwanda. But many of the people of Rwanda were of the opinion that the ICTR did not fall short of the mandate given to it by the Rwandan people because the Rwandan people never gave any mandate to the ICTR to begin with. It was the United Nations Security Council that gave a mandate to the Tribunal and so the people may have to look elsewhere for justice if they felt that the Tribunal had fallen short of its expected returns. Some specific instances readily come to mind.
When the Tribunal’s Trial Chambers found Zigiranyirazo, the brother-in-law of the assassinated Rwandan President Habyarimana guilty, the verdict was met with wild jubilations but the conviction to be upturned at the Appellate Chambers of the Tribunal on legalistic grounds that were not clear to the majority of the Rwandan victims. Also, a Catholic Priest named Nsengimana who was arrested in the year 2002 and believed to have been the epicentre of a Hutu extremist group but was acquitted after the Tribunal held that it did not find “a sufficient factual and legal basis for concluding that Nsengimana was guilty of any of the crimes alleged.” This sparked serious protests around Rwanda. In the midst of all these perceived and real iniquities and misgivings surrounding the ICTR, the Gacaca Courts were established by the Rwandan people as a point of resort for securing the justice which was believed had evaded them at the ICTR.2.3.
4. The Gacaca CourtsThe Gacaca Courts were established to deliver justice that understood the context of the African, nay Rwanda society, and took into consideration the much valued traditional conception of justice which greatly prioritised the family as the building block of the community and its values, community structure and also reconciliation. The gacaca court is a system of community justice brought about by Rwandan traditional system. Loosely translated, gacaca means “justice amongst the grass”. The Rwandan gacaca courts were established as a response to a huge backlog of untried genocide cases and within 10 years, the courts tried well over two million suspects. The accomplishments of the Gacaca Courts in prosecuting such a large number of perpetrators over a shorter length of time and for a fraction of the cost expended by the ICTR is a further indictment of the effectiveness or otherwise of the ICTR.
Although it is true that the structure of the Gacaca Courts was very informal and it had more semblance with a quasi-judicial body rather than a court of law, its ability to create a suitable avenue for prosecution of “the most suspects” accused of criminal complicity and culpability for the Rwandan genocide within a record space of time, in a way and manner that has led to the current wave of prosperity, healing and progress being enjoyed by the people of Rwanda is testament to the fact that home-grown juridical solutions which inject basic western precepts into African institutions and are well contextualized within the African continent can deliver the goods. It is in fact safe to conclude that the success and expeditiousness which the gacaca courts enjoyed can be attributed to African-ness of the judicial process.2.4 The Impact of the International Criminal Court in Africa The International Criminal Court (the ICC) was established over two decades ago vides the Rome Statute, to investigate, indict and try individuals for international crimes, crime. Historically, there had been no permanent international criminal tribunal prior to the establishment of the International Criminal Court which investigates and tries individuals charged with being most responsible for the gravest crimes of concern to the international community i.e.
genocide, crimes against humanity, crimes of aggression and war crimes. Thus, the International Criminal Court is the world’s first and only permanent international criminal court till date. It has been said that the ICC was not established to replace national courts, rather it was established to compliment national criminal courts as a court of last resort where all other institutions available to the state has been unable to deliver justice to victims of war crimes and war criminals.
The African Continent played an important role in the creation and commencement of the International Criminal Court (ICC). African states contributed immensly to the preparations leading up to, during and after the diplomatic conference in Rome at which the Rome Statute of the ICC was adopted and out of the 123 countries that are party to the Rome Statute, a multilateral treaty which created the ICC in 2002, 34 are Africans thereby making Africa the largest regional bloc of ICC membership. The importance of the role played by African States in the formation of the ICC ‘played a very important role prior to and during the establishment of the Court and perhaps, without Africa’s support, the Rome Statute would never have been adopted.’2.4.1.
Invoking the Jurisdiction of the ICCThere are three ways of invoking the jurisdiction of the ICC. The first is by submission of information by an individual(s), group(s), governmental or non-governmental organization(s), state(s) or state; the second way is through referral from a State Party to the Rome Statute or the United Nations Security Council and the third way is through a declaration lodged by a state accepting the exercise of jurisdiction by the ICC. Once an information, referral or declaration has been lodged, the Office of the Prosecutor of the ICC then carries out a preliminary examination of the situation referred to the Court to determine its suitability or otherwise for investigation as an act of international crime. The legal framework for conducting the preliminary investigation and the factors that must be given adequate consideration are set out in the Statute.
The Statute provides that in order for the Prosecutor to determine whether there is a reasonable basis to proceed with investigation, the Prosecutor must consider jurisdiction, admissibility and the interests of justice. Once the preliminary examination is concluded and a situation is found suitable for investigation, the Office of the Prosecutor conducts an investigation into situation to determine suitability for judicial action and then an indictment is brought by way of charges against the suspect at the Pre-Trial Chambers of the ICC.2.
4.2. The Judicial Process at the ICCAt the Pre-Trial stage, there are generally three Judges per case. The Pre-Trial Judges evaluate the evidence presented by the Prosecutor to determine if there is a prima facie for the case to go to trial or otherwise.
If the Pre-Trial Judges find that there is sufficient evidence for the case to go to trial, they confirm the charges and commit the case to trial. But if they find that there is no sufficient evidence for the case to go to trial, the Pre-Trial Judges quash the charges and strike out the case. The Pre-Trial Judges are responsible for the preservation of evidence and the protection of witnesses, suspects and victim of the alleged crimes at the investigation stage. If the Pre-Trial Judges find at the Pre-Trial Stage that there is sufficient evidence for a matter to be remitted for trial, the charges are confirmed and the case is remitted for trial. The Trial Judges are responsible for ensuring a just and fair trial of any person accused of having committed international crimes. Three Trial Judges sit per case and they are responsible for hearing evidence and determining whether the case against the accused person has been proved beyond reasonable doubt or otherwise. Where they find that the case against the accused person has been proved beyond reasonable doubt, the Trial Judges have the power to sentence accordingly. Where otherwise, the Court has the power to discharge and/or acquit the accused person.
The Trial Court also has the power to order restitution, compensation and rehabilitation where necessary. Where a person who has been convicted for international crime by the International Criminal Court is aggrieved by such decision and he decides to ventilate his grievance over such decision, the convict can appeal such decision of the Trial Division at the Appellate Division. At the Appellate Division of the Court, five Judges of the International Criminal Court handle appeals filed by the convict.
After an appraisal of the appeal, the Appellate Judges have the power to amend, confirm or reverse a decision on guilt or innocence or on the sentence of the appellant. The Appellate Division also ensures that the conviction was not materially affected by errors or by unfairness of proceedings. They can confirm, reverse, amend or revise the decision of the Trial Division.The once cordial relationship between the African region and the ICC has since gone sour as it appears that ICC may be targeting only Africans. It may be safe to assert that the ICC has so far been an internationalized tribunal for prosecuting international crimes committed on the African continent.
This assertion is however dealt with later on in this thesis2.4.3. Criticisms of the International Criminal Court With an annual budget of averaging 90 Million US Dollars during the first ten years of its establishment, an observer would be forgiven to think that the ICC would be an efficient bastion for securing international criminal justice but this is not the case. Between 2002, when the ICC issued its first indictment and 2012, when it clocked a decade of existence, the ICC had only delivered one verdict.
This led many leaders of opinion to suggest that the ICC was too expensive and incapable of delivering the much-needed goods of international criminal justice. The ICC is facing severe criticism for its preoccupied focus on the Africans only. This assessment has not been a fair one considering the fact that some of the situations of the judicial action currently being undertaken by the ICC were commenced based on referrals by the States themselves.
Two other situations are the result of Security Council referrals and two are a result of exercise of the Prosecutor’s own discretion. First, the ICC has alienated the African Union (the AU), the Union of the home country of all the international crimes that it has ever raised an indictment on. The AU has passed several resolutions demonstrating its growing disregard for the ICC, including encouraging member states not to cooperate in effecting the arrest warrant and even refusing the up of a liaison office by the Court at the AU headquarters in Addis Ababa.
These resulted in the decision of the AU asserting the immunity of African heads of state from prosecution by the ICC and the advice to President Uhuru Kenyatta to refrain from answering to and appearing before the ICC in the case that was ongoing against him then. In October 2016, the governments of Burundi, Gambia and South Africa announced their intention to withdraw from the Rome Statute. Although the process for the effectual withdrawal is still ongoing, a Bill for an Act to repeal the local ratification Rome Statute is still ongoing and in its place, the Act seeks to locally criminalize all the international crimes currently within the jurisdictional purview of the ICC.Secondly, the fixation of the ICC on only Africans and African States continue to anchor the argument that the ICC is a weapon of western imperialism empanelled by former colonial powers to keep African states under their imposition. For instance, while Sudan is not party to the Rome Statute, the referral of the situation in Darfur culminating in the issue of the warrant of arrest against the Sudanese President Omar Al Bashir still creates a big legal question that the ICC has been unable to answer. The formidable legal argument of the African Head of State is that ‘incumbent heads of non-party states are entitled to immunity from arrest in international law, and that, that immunity has not been affected by the Rome Statute of the International Criminal Court.
‘ From a legal standpoint, the plausibility of this argument cannot be wished away and until the UNSC plugs this legal loophole, the warrant issued against Mr. Bashir will continue to be treated as a mere piece of paper issued by states desirous of the old days of colonial imposition.Further to the above, it is instructive to remember that some of the permanent members of the UNSC who referred Mr. Bashir’s matter to the ICC for prosecution are not party members to the Rome Statute thereby lending further credence that the ICC is only a tool of imposition by powerful western allies. This supports the view that what is good for the goose is definitely not good enough for the gander as it pertains to the ICC. This fortifies the widely held notion on the African continent that the ICC and the UNSC are cohorts in the service of the interests of western powers who continue to superimpose the ICC and its decisions on Africa and her leaders. If the UNSC was swift in referring the matters of Libya and Sudan to the ICC, why hasn’t the same UNSC referred the atrocities currently being perpetrated by the Syrian government to the ICC? This position is emphasized by the fact that the Security Council referred those situations and yet has chosen to take some others such as the on-going conflict in Syria less seriously. The decisions of both the former and current chief Prosecutors to exclusively concentrate on African situations and to ignore the commission of international crimes in Iraq (by British forces), Colombia, the Comoros (by Israel’s attack on a ship registered in the Union of the Comoros ‘the Mavi Marmara’) and Palestine when contrasted with the determination to proceed with the cases from Kenya and Mali where much less harm was done confirms the allegations of bias.
This has encouraged many in Africa to buy into the accusations of imperialism and has led to a shift of sympathies away from the court to the perpetrators as has been suggested in the case of Kenya. Curiously, there has not been a dearth of information on alleged abuses and commission of war crimes have come from other parts of the world to the Office of the Prosecutor (OTP) at the ICC. Information have come from Iraq, Venezuela, Palestine, Colombia and Afghanistan asking the OTP to commence preliminary examination of the situations there and commission an investigation into the carnage going as fit. But the OTP has either left the information to the preliminary examination stage or has plainly refused and/or neglected to carry out investigation. In 2017, the OTP finally decided to commence investigations into the crimes committed in Afghanistan almost a decade after information was first sent to the OTP. It is the foregoing that continues to underscore the political angle to international criminal justice in common and the ICC specifically. When situated in context, the facts above present ICC as a tool for the achievement of political ends rather than the course of justice in international criminal justice system in its decisions and practice wherein the primary consideration for reaching decisions as to whether to prosecute international crimes or not have become political and the victims are nothing but pawns who can be dispensed with wherever it has become politically expedient to do so.
Thirdly, the ICC has guzzled vast resources with very little by way of non-commensurate results to show for the large amount of funds pumped into the ICC every year. Those who have been completely tried received very lenient sentences that are not commensurate with the crimes committed compared to the sentences handed down back home in Africa for similar crimes committed. Also, the relative comfort in which the perpetrators of heinous crimes serve their light sentences makes a mockery of justice and casts the ICC in a very negative light to the victim community and the victims themselves. After over a decade without verdicts, the judgment of the ICC against the notorious warlord, Thomas Lubanga of the Democratic Republic of Congo made a mockery of justice itself. Lubanga was found guilty of the war crime of enlisting and conscripting children as soldiers for the purpose of using them in armed conflict. But to the dismay of the world, Lubanga was sentenced to fourteen years imprisonment.
When due consideration is given to the carnage and havoc wreaked by the armies of Lubanga and war lords of his likes, it becomes very obvious that the sentence is just a slap on the wrist. On a related note, the pending prosecution of several leaders of the Lord’s Resistance Army and the failure of the ICC to bring Joseph Kony to book has reinforced the failure of the ICC to tackle what many believe would be better done by the locals. Also, the failure of the ICC to guarantee that those tried in the Hague and deserving of severe punishment will receive the heavy sentence including perhaps the death penalty has led to the believe that justice can only best be served on the suspects if they are tried in Uganda. Lastly, the primary focus of the ICC and other international criminal tribunals in general on retribution rather than restoration has also highlighted a great failing of the ICC and other international tribunals of its ilk.
Victims in post conflict states are more often than not concerned with the restoration of peace more than ensuring that retributive justice is done. But the reverse has proven to be the case with the ICC and other international tribunals on Africa and after several instances where the ICC has failed to deliver on restoring the peace or has even become an impediment in the way of achieving the peace, the people lost faith completely in its machinery. Bueno found that, after interviewing many victim communities concerning their expectations from the ICC, in the Democratic Republic of Congo for example, the pattern above was revealed. Also, the initial support which the ICC’s involvement in prosecuting members of the LRA enjoyed from the Ugandan people waned after the ICC’s indictment of Joseph Kony and other LRA leaders appeared to have prevented the conclusion of a peace agreement between the Ugandan Government and the Rebel Group.It may perhaps be worthy of note, some of the other cases of the ICC to reach its final stage in which verdicts were given are: Germain Katanga, who was the allegedly leader of the force de resistance Patriotique en ituri (FRPI) he was found guilty as an accessory of a one count crime against humanity (murder) and 4 counts of war crimes: murder, attacking civilian population, pillaging and destruction of Property, these atrocities committed since 2003 but Judegement was rendered however, almost a decade after (2014). He was sentenced to a total of 12 years in prison. Also the case of Ahmad Al Faqi Al Mahdi who was an alleged member of a movement said to be associated with Al Qaeda, He was found guilty as a co-perpetrator of war crime, consisting of intentionally directing attacks against religious and historic buildings in Timbuktu, Mali sometime in 2012. He was found guilty and sentenced to 9 years in prison.
2.5 Closing Remarks International criminal justice through both the ICTR and the ICC is in disarray in Africa. The unabashed criticisms of the two Tribunals, founded on great reason, show that Africa must look beyond these two, for the restorative and equally retributive justice that is necessary for post conflict situations in Africa. In order to achieve this end, a home-grown solution that situates justice within the African context, closer to the people and ideologies of restoration and community became imperative. Proponents of the hybrid tribunal model believe that the hybrid tribunals have the ability to accomplish this task. The following chapters investigate the extent to which this is.CHAPTER THREEAN OVERVIEW OF HYBRID COURTS3.1 IntroductionThere are three generations of tribunals for international crimes.
The first generation includes the International Military Tribunals of Nuremberg and Tokyo; the second generation includes the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) while the third generation of tribunals for prosecution of international crimes are the Hybrid tribunals which are also known as the internationalized criminal tribunals. Hybrid tribunals represent a radical departure from the lore that only purely international courts can secure an impartial and fair judicial process that is in conformity with international standards and best practices. Hybrid tribunals have the highest promise of ending impunity. By actively engaging and involving the local population in the judicial process, the capacity of the local judiciaries can be built and rule of law thereby promoted. In this wise, criminal justice becomes a restorative mechanism of transitional measures.
Hybrid tribunals are able to achieve a cathartic effect on the victim community because they are usually set up at the scene where despicable criminal activities which the tribunal is to prosecute were perpetrated. The location of the tribunal in the locus criminis also promotes procedural effectiveness and aids the swift discharge of judicial functions. Usually situated at the scene of the atrocities, they foster reconciliation by having a cathartic effect on the victim community and promote procedural effectiveness. Hybrid courts also bring the judicial process closer to home. It employs the locals within the communities where the atrocities occurred thereby providing an immediate avenue for the local population to engage with the court. In the light of the advantages enumerated above, this chapter provides an overview of the hybrid tribunals that had been created thus far. This chapter also examines the viability of hybrid tribunals with regards to the achievement of international criminal justice in post war situations.
3.2. The Creation of Hybrid CourtsThere are several hybrid tribunals established towards the achievement of the cause of international criminal justice but it is always imperative to point out that the similarities between the tribunals end there. But the distinction is not a disadvantage. Rather, the distinction is testamentary of the fact that each hybrid tribunal was created within the historical context of the society which the tribunal was meant to serve unlike the blanket international criminal court and the international criminal tribunal which we have examined earlier, in extensor. Thus it has been opined that the various examples of hybrid tribunals currently in existence are so distinct from each other that it would not be wise and proper to assess them together as one model of international criminal prosecutions. Each hybrid tribunal has its own distinct historical background leading to its establishment.
Each hybrid tribunal also has a distinct mode in which it was established and each tribunal has its own distinct principles undergirding its legal personality. 3.2.1. Creation of the Hybrid Court in Cambodia, the Extraordinary Chambers in the Court of Cambodia (ECCC)As an illustration of the point made in the last paragraph, the Memorandum of Understanding, which was ratified by the Cambodian Parliament in October 2004, leading to the establishment of the Extraordinary Chambers in the Courts of Cambodia, an hybrid tribunal, was the result of a long drawn out negotiation that commenced in 1997 between the UN and the Government of Co-Prime Ministers Hu Sen and Norodom Ranariddh of Cambodia. The government of Cambodia negotiated from the standpoint of wanting to ensure that the international involvement in the process of the hybrid tribunal was limited in order to have more internal local control of the whole process but the UN feared that the effect of local government control with limited international involvement may open the process to partiality, manipulation and unfairness. Following the takeover of power by the Khmer Rouge in 1975, thousands of people died while they were being forced to go to the countryside to practice Agriculture. The Khmer Rouge then began to make life unbearable for the people of Cambodia by abolishing money, free market, foreign clothing style, normal schooling.
Freedom of movement was severely restricted as there was no private or public transportation. In fact, people were not encouraged to have family relationship as the Khmer Rouge was seen as everyone’s mother and father. During the regime of the Khmer Rouge, thousands of people were executed – from intellectuals to minority, from city residents to Khmer Rouge’s own soldiers and party members. A civil war brokered when Khmer rouge was overthrown but finally ended in 1998, when the Khmer Rouge political and military structures was disassembled Hence, this led to the request for assistance by the Cambodian government, to the United Nations and the international community in bringing to justice persons responsible for the genocide and crimes against humanity during the reign of the Khmer Rouge from 1975 to 1979.”3.2.
2. Creation of the Hybrid Court in Sierra Leone, the Special Court of Sierra Leone (SCSL)On the other hand, it was President Ahmad Tejan Kabbah who formally requested the United Nations Security Council to set up a special court in Sierra Leone. This was due to the serious war that brokered in Sierra Leone and there was need to bring the perpetrators to the book, Hence the agreement was quickly reached and ratified within a short space of time within the same year 2000 between the government of Sierra Leone and the United Nations Secretary General. The SCSL has been regarded as the world’s first “hybrid” international criminal tribunal. Also, “the Special Court for Sierra Leone was the first international court to be funded by voluntary contributions and, in 2013, became the first court to complete its mandate and transition to a residual mechanism.”3.2.3.
Creation of the Hybrid Court in East TimorIt was the United Nations Transitional Administration in East Timor (UNTAET) that established a partially internationalized hybrid judicial body in the capital city Dili. The hybrid tribunal thus established was empowered to administer both the hybrid laws of the UNTAET administration and the international law. The hybrid tribunal had both local and foreign judges on the tribunal and Special Panels were constituted to sit and exercise jurisdiction over cases of atrocities. 3.
2.4. Creation of Hybrid Tribunals in KosovoAfter due consideration had been given to the possibility of creating a special Kosovo War and Ethnic Crimes Court to prosecute cases of serious international crimes that did not fall within the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and that idea was jettisoned, the United Nations Mission in Kosovo adopted several regulations providing for the involvement of both foreign and local judges in the district courts of Kosovo on special panels, known as Regulation 64 Panels, who would apply both local and international law in doing justice to cases brought before them. It is imperative to point out that the hybrid tribunals created by the United Nations Transitional Administrations in East Timor and Kosovo were under the complete control of the United Nations.
Creation of the Hybrid Court for LebanonOn 14 February 2005, Lebanese Prime Minister Rafic Hariri was assassinated when explosives were detonated close to his convoy and other vehicles on the street of Beirut. The United Nations empanelled a Hybrid Tribunal for the sole purpose of prosecuting persons responsible for this act of terrorism and other international crimes committed in relation to the assassination. The Special Tribunal for Lebanon (STL) was created under Chapter VII of the United Nations Charter by the Security Council Resolution 1757 of 13 May 2007. Thereafter in 2008, the international investigation carried out by the United Nations International Independent Investigation Commission (UNIIIC) was concluded and in its tenth report, it was held that “it has evidence that a group of individuals acted in concord to carry out the assassination of former Prime Minister Rafiq Hariri and that this criminal network, or parts thereof, are linked to some of the other cases within the Commission’s mandate.” On the 16th of January 2014, three persons – Salim Jamil Ayyash, Hassan Habib Merhi, Hussein Hassan Oneissi and Assad Hassan Sabra – were charged with conspiracy to commit a terrotist act. It should be noted that the trial is ongoing.
However, two persons, Al Amin and Akhbar Beirut S.A.L. were found guilty and sentenced to pay fines. It was however reported that, that was the first time a company was convicted at an international tribunal.3.3. Characteristics of Hybrid TribunalsHaving demonstrated the extent to which hybrid courts are distinct and distinguishable in the paragraphs before this, it is still important to mention that there are several distinctive features that separate hybrid tribunals from all other forms of judicial mechanisms for the delivery of international criminal justice in the world today.
Several similarities are noticeable enough to point to the existence of a distinct hybrid tribunal model. The hybrid tribunals discussed share several important features including the combination of domestic and international elements in the institutions and the applicable law. Foreign judges sit alongside the local judges to try cases prosecuted and defended by teams of local and international lawyers and at the same time, the judges apply domestic law that has been reformed to include international standards. Some of the similarities will be discussed below.3.
3.1. Appointment of PersonnelAll hybrid courts, as their name implies include both local and foreign personnel in their set up. But even in this similarity, there are variations. For instance, the legislation creating the Special Court of Sierra Leone provides that the majority of the judges in the Trial and Appellate Chambers of the Tribunal are to be appointed by the UN Secretary General while the rest are to be appointed by the Government of Sierra Leone. The Statute provides that the Prosecutor and the Registrar are to be appointed by the UN Secretary General but the Statute requires that the Deputy Prosecutor must be from Sierra Leone.
Meanwhile, in the Extraordinary Chambers of the Court of Cambodia, the Statute requires that the judges must be predominantly Cambodian. The foreign judges that make up the remainder are to be nominated by the UN Secretary General but must be appointed by the Supreme Council of the Magistracy of Cambodia. A rule known as the ‘super-majority’ rule was developed to checkmate possible excesses of the local judges by requiring that at least one international or foreign judge must vote in favour of a decision of the Court for it to pass. Also instead of having one Prosecutor at a time, the A Cambodian and an international serve simultaneously on equal footing as co-prosecutors. The administration of the court is headed by a Cambodian, deputized by a foreigner who is responsible for matters of international dimensions.
The Special Panels in East Timor were presided over by one East Timorese judge and two international judges. An international, designated as the Deputy General Prosecutor, and assisted by nationals, had exclusive prosecutorial authority over the crimes. Under Regulation 64 in Kosovo, the UN Special Prosecutor has the power to designate an International Prosecutor, an international investigating judge or a panel of 3 judges, 2 of which must be internationals on the request of either the prosecutor, defence counsel or the accused person himself. In Lebanon, the story is also similar. Internationals and local judges work alongside each other in the dispensation of international criminal justice under the banner of the Special Tribunal for Lebanon.3.3.
2. Hybrid LawsAnother important feature of hybrid tribunals is the use of both international and local laws in the administration of criminal justice. For instance, the statutes establishing the hybrid courts in East Timor, Sierra Leone and Cambodia expressly mandate each panel of judges to apply both substantive international law and substantive domestic criminal law. In all cases of hybrid tribunals references are made to both the international criminal laws and the local criminal laws. Thus, the Statute creating the Extraordinary Chambers granted the Chambers the prosecutorial authority over the international crimes of genocide, crimes against humanity, grave breaches of the Geneva Convention, the destruction of property and crimes against internationally protected persons as well as the authority to prosecute homicide, torture and religious persecution which are three specific offences under the Penal Code of Cambodia.In a similar vein, the Statute of the Special Court of Sierra Leone grants prosecutorial power to the Court over specific crimes under Sierra Leonean law such as offences relating to the abuse of girls and offences relating to wanton destruction of property while also granting the special court prosecutorial jurisdiction over international crimes such as crimes against humanity, violations of common Article 3 of the Geneva Convention and of the Additional Protocol II and other serious violations of international humanitarian law.In East Timor, the Serious Crimes Panel is the only internationalized criminal court that claimed universal jurisdiction over matters of criminal law. The Serious Crimes Panels had jurisdiction over murder and sexual offences under the Penal Code of East Timor and also had prosecutorial jurisdiction over all the recognized international crimes.
Further, in Kosovo, the hybrid tribunals applied both the domestic laws and the international criminal law incorporated into them indirectly through the medium of domestic legislation already in existence. 3.3.
3. Location of Tribunal, UN Involvement and Financial AutonomyThere are other characteristics of hybrid tribunals which are not necessarily tied to their hybrid nature but contribute to their collective distinction as a different model of international criminal prosecution. Location of the tribunal is prominent amongst these characteristics. Hybrid Courts usually sit in the locus criminis. This is true of all hybrid tribunals with the exception of the Special Tribunal for Lebanon and the Extraordinary African Chambers in Senegal which are situated in The Hague and Dakar respectively. Hybrid tribunals also share the involvement of the United Nations in their creation, establishment and legal personality with the exception of the Extraordinary Chambers in the Courts of Senegal, which was established pursuant to an agreement between the African Union and the Government of Senegal. Also hybrid courts are usually created to meet specific situations.
In this wise, hybrids are adhoc in nature and exist only for the specific situation they were created for. Hybrids also similarly enjoy some level of financial autonomy. This is a departure from what obtains with the ICTY and the ICTR which rely exclusively on UN funding to actualize their mandate. Typically the hybrids derive their funding mostly from the government of the state in question and international donations for the discharge of their mandate. These distinctive features clearly demarcate hybrid tribunals as a distinct generation of international criminal justice mechanisms.3.
4 Strengths of Hybrid CourtsPerhaps the most remarkable strength of the hybrid model of international prosecutions is its capacity to accommodate the expertise of the international community with local participation thereby engendering legitimacy and justice. By including international justices in the judicial process, the perception of fairness and impartiality of the tribunal is reinforced. The genius of this achievement is considered in the background of the fact that criminal prosecution can be political and susceptible to manipulation by the political class. For instance, in Kosovo, ethnic Serbs considered previous domestic prosecutions as biased because many of the Judges were ethnic Albanians. In this wise, judges of Serbian descent refused to cooperate with those of Albanian origin and so the decisions handed down by the courts were seen as partial and unfair.
But the addition of international judges to the courts went a long way in improving public perception of the judicial process and promoting very wide acceptance of the decisions of the courts. By situating the tribunal within the transitional society, the impact of the tribunal’s capacity to create a long term on the domestic judicial institution is always a positive step towards rebuilding battered judicial institutions. This greatly aids the penetration of the rule of law and the establishment of a civil society founded on the precepts of freedom and democracy. It also ensures that a better cost effective outreach system can be created within the communities to aid legitimacy and locality involvement in the process. Also, the inclusion of local personnel in the judicial process helps to revive dead structures and create a path to a strong judicial institution. It also ensures local ownership of the whole judicial process thereby making it more accessible to the locality.
Aside from the judges that are hired, hybrids also inevitably employ registry of local staff thereby improving local access to the tribunal and creating a contextual awareness and nuance for the hybrid to situate and progress its work within the communities. The use of local language and the engagement of the local media in reportage thereby positively influencing perception and participation is another advantage of hybrids when they are situated within the society where the crimes were committed. In this wise, the interaction between the international judges and the domestic judges can serve as a great avenue for the domestic judges to learn and develop competencies in judicial best practices that are in line with international standards. This will have good resonance on the judicial system in their society as a whole. The fusion of international criminal law with domestic criminal law helps to greatly expand the jurisprudence of the society of the hybrid and also makes the process more readily available and accessible to the locality as against international tribunals using international criminal law only. Since the community already has a working understanding of its own judiciary, it becomes very easy for locals to appraise and assess the improvements and deficiencies of the hybrid thereby engendering a sense of participative inclusion in the whole justice system.
Local attorneys and judicial officers are also given the opportunity to play an active role in the development of the system and its implementation. The fact that hybrid tribunals are adhoc and non-permanent means that they can be easily set up as an expedient tool and are best suited to meeting specific transitional justice needs in a post war society. They can also be developed from the scratch to meet particular situations and circumstances.
They do not have the constraints of jurisdiction which the ICTR and the ICTY were burdened with at some point or the other. In this wise, they also have an edge. But this is not to say that hybrids do not have their own drawbacks.
In fact, they have been fairly criticised on some points.3.5 Criticisms of Hybrid Courts While it is easily recognised that the fusion of international laws with domestic laws; and international actors with domestic actors ordinarily should lead to a more robust and efficient transitional justice mechanism, this has not always been true in the case of most hybrid courts. In fact, this strength has also played out as a major weakness of the system whereby the international actors are oblivious of the local context and environment along with the challenges that led to the collapse of law and order and the judicial institution within the State.
Some hybrids have been criticised for the exclusion of local participants in the design process of the courts. This had alienated the people and left a negative perception in their minds towards the hybrid even amongst the elites. In order to ensure impartiality and fairness, the international actors, during the build up to the hybrid, try to ensure that there is little or no involvement of the locals in the creation of the courts. This, it is widely believed, would prevent a situation where the locals influence the courts from creation to ensure that it served a particular agenda whenever it comes fully into panel.
In this wise, each hybrid has been criticised for individual flaws. As illustration of this point, in East Timor, the East Timorese people heavily criticised the hybrid for failing to include traditional Timorese healers in the court’s dispute resolution mechanism because it is widely believed that these highly revered traditional healers constituted important moral authorities and having developed systems that worked to great success in the past, they ought to have been incorporated into the procedure of the transitional justice mechanism of the hybrid. Also, since the legal concepts and mechanism of the hybrid was foreign to the locals, this made them ordinarily inaccessible to them. This gap, it was believed, the traditional healers would have filled has they been incorporated into the whole process. The people have also expressed disappointment with the pace and scope of the work delivered by the hybrid. The Special Panels of East Timor were also criticised for only prosecuting lower level perpetrators and ignoring the major perpetrators who were enjoying asylum in Indonesia. As discussed earlier, the Panels were also accused of not incorporating well- tested and trusted traditional methods of dispute resolution through healing into their system and the Panels also failed to take into account the people’s desire to locate Timorese people who had gone missing during the conflict. The Panels also did not have an outreach program and this gravely affected the tribunal’s ability to leave a lasting impact on the East Timorese people. Lack of funding, poor management of the limited resources available, lack of experienced personnel and the lack of political will on the part of the government contributed greatly to the limited success which the Panels enjoyed.The design-problem also played a significant role in the abysmal showing of the hybrid prosecutions in Kosovo. The failure of the United Nations to actively engage the local population in the creation and design of the Regulation 64 Panels led to a widespread bias against the courts. Also, due to the lack of sensitization of the people on the purpose and mandate of the panels, the people were not readily cooperative and in some instances, they were hostile towards the work of the Panels. Also many ethnic Albanians believed that the members of the Kosovo Liberation Army were national heroes who should be celebrated, rather than prosecuted and so they vehemently resisted the prosecution of the KLA. In the face of all these, poor funding and minimal capacity, the hybrid experiment in Kosovo suffered a similar fate with that of East Timor.The Statute that created the Extraordinary Chambers in the Courts of Cambodia made sparse and insufficient references to international law and this created an overtly limited jurisdiction for the courts. This has been attributed to the long drawn negotiations and the resultant compromise that had to be reached between the Cambodian Government and the United Nations to the overall disadvantage of international criminal prosecution. In the advent of this, the Extraordinary Chambers battled with insufficient legal protection, political interference, limited jurisdiction, accusations of bias and corruption that was a famous feature of the court thereby negatively impacting on the perception of the court and its ability to fully and effectively deliver on its mandate. The Special Court for Sierra Leone and the Extraordinary Chambers of the Courts of Senegal have also been severely criticised for their own drawbacks and shortcomings. These will be discussed in great length in the next chapter. 3.6 The Place of Hybrid Courts in the Age of the International Criminal Court Many hybrid courts were established prior to the commencement of operation by the International Criminal Court in The Hague. This ordinarily begs the question as to what is the relationship between the ICC and the hybrids. It is imperative to point out that the ICC operates on the principle of complementarity. This means that the ICC can only prosecute cases when the States having jurisdiction over such cases are unable and/or unwilling to do so. Given that hybrid tribunals are established through agreements entered into by States pursuant to the exercise of their right to prosecute international crimes within their domain, the implication of this is that it is possible for the hybrid tribunals to coexist with the ICC. At any rate, since the jurisdiction of the ICC is limited to prosecuting only those found to have been “most responsible” for the commission of international crimes, this limited scope leaves an impunity gap that can be filled by the establishment of a hybrid tribunal. It is also worthy of note that the jurisdiction of the ICC is limited to acts committed within State Parties after the States became parties to the Rome Statute. Hence it is arguable that it would be wise for future hybrids should be designed to have broadened jurisdiction so that they may prevent falling into the same pitfall that the hybrids with limited jurisdiction had fallen into in the past. Thus, the embarrassment of the ICC over Libya and Sudan on the issue of warrants against Heads of States who were not parties to the Rome Statute can be prevented through the use of hybrids. 3.7 Closing Remarks Although several of the criticisms and drawbacks of the hybrid model of international criminal prosecution are similar to those of the international tribunals such as the ICTR and ICTY and even the permanent court in The Hague, it is imperative to point out by way of commentary that these are creases in the development of the model and as is the case with all creases, they can be ironed out.CHAPTER FOURTHE VIABILITY OF HYBRID COURT MODEL IN AFRICA 4.1 Introduction In the previous chapter, the hybrid court model of criminal prosecution was given due consideration. In this chapter, the hybrid court model will be situated within the African context and the hybrid courts in Africa will be considered in extensor. The two hybrid tribunals in Africa, the Special Court for Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Senegal ECCS), have both delivered the goods. The SCSL has successfully completed its mandate within a decade and is now in residual mode. The ECCS has also achieved tremendous success, chief amongst which is the conviction of erstwhile Chadian President Hisene Habre. Due attention will be given to the background, creation, jurisdiction/applicable laws, strengths, criticisms, and impacts of the tribunals towards understanding the viability of the model and the improvements and innovations necessary for the future hybrid tribunals. 4.2 The Special Court for Sierra Leone 4.2.1 Background to Establishment of the Special Court for Sierra Leone (SCSL) The crisis that led to the destabilization of the West African region for over a decade began in March 1991 when a group of rebels named the Revolutionary United Front (RUF) started an insurrection against the government of Sierra Leone. The RUF were assisted by Charles Taylor, the President of Sierra Leone’s neighbour, Liberia. This began a civil war that spanned over a decade. By the time the war ended, the socio-economic, political and institutional structure of Sierra Leone had collapsed. Millions of people were dead, exiled, terribly injured or internally displaced. Although several attempts were made while the war was ongoing to resolve the conflict between the warring parties, all met with no success until the intervention of both international and regional troops of peace keepers led to the capture of the leader of RUF, Mr. Foday Sankoh by British troops. 4.2.2. Creation of SCSLIt has been opined that it was the failure of the attempts at amicable resolution of the conflict that necessitated the urge for criminal justice. Immediately after the war, President Tejan Kabbah sent a letter to the United Nations Security Council requesting the Council to initiate the process for setting up a strong and credible court that would bring to credible justice members of the RUF and their accomplices who were responsible for the crimes committed against the people of Sierra Leone and thereby ensuring the peace. The President expressed the desire for the court to be located in Sierra Leone, meet international standards for criminal prosecution and do justice through the application of both international and Sierra Leonean law. The United Nations acceded to the President’s request, and on the 12th of April, 2002, the SCSL came into existence through a memorandum of understanding between the Secretary General of the UN and the government of Sierra Leone. 4.2.3 Jurisdiction/Applicable Laws and Structure of the SCSLThe jurisdiction of SCSL was the prosecution of persons most responsible for war crimes, crimes against humanity, and other grievous violation of international humanitarian law as well as crimes committed against the criminal laws of Sierra Leone within the Sierra Leonean territory since 30 November 1996. The SCSL was created to be an independent judicial institution within the Sierra Leonean state structure with jurisdiction to the exclusion of the national courts on crimes within the SCSL’s jurisdiction. SCSL is a one-of-a-kind legal entity created by treaty, which enjoys legal personality with all its attendant legal enablement including but not limited to the capacity to contract with an independent capacity different from that of the members of the treaty establishing the court. The SCSL enjoys the distinction of being the hybrid that did not emerge from a decision of the UNSC; it is also run by neither the government of Sierra Leone or the UN. It enjoyed its own personality fully. SCSL is structured along three primary organs to wit: the Judges’ Chambers, Officer of the Prosecutor (OTP) and the Registry of the Court. SCSL functions both as a judicial and non-judicial institution. As illustration, the Registry of the Court which preserves and manages its archives is also responsible for administering the court, managing matters relating to detention and also negotiating necessary agreements with states. The administration of the SCSL lies with a Management Committee (which included representatives from the UN and the Government of Sierra Leone, Canada, the Netherlands, United Kingdom, Nigeria and the United States) that sourced funds through donations from member states of the United Nations. Foday Sankoh died during the course of his prosecution at the SCSL. So did Sam Bockarie and so the cases against the two of them were withdrawn after their deaths were confirmed. Sameul Hinga also died in custody while awaiting delivery of judgment in his case. These deaths left only Charles Taylor, former President of Liberia, as the major prominent figure that was tried by the Court. The SCSL eventually nine individuals in four heads of cases commonly referred to as the Civil Defence Forces Cases; Armed Forces Revolutionary Council Cases; the Revolutionary United Front Cases Having exhausted their appeals, the eight surviving convicts are now serving their jail terms. The conviction of Charles Taylor was an important milestone in the work of SCSL and international criminal justice in general. It was the first time that an African head of State will be held accountable for international crimes. The SCSL has since, successfully completed its mandate and now in residual mode. A Residual Court has since been established, after the closure of the SCSL in 2013 upon the fulfilment of its mandate, to carry out the residual legal and administrative obligations of the tribunal. 4.2.4 Criticisms of the Special Court for Sierra Leone Although the SCSL enjoyed substantial success, there were certain issues that almost undermined the genius of the court’s achievements. Perhaps the biggest of these issues was the decision of the SCSL to transfer the prosecution of Charles Taylor to The Hague. Many Africans had wished that the warlord would be completely prosecuted on African soil and this created some of the apprehension and suspicion which had been harboured for the ICTR and the ICC for the SCSL too. His trial was the piece de resistance of the Special Court given the extent of his influence in the civil war. It would have been very important for the people to witness his trial first hand and the failure of the Special Court to deliver this was a serious short coming. Since the location of the Court in the country where the crime was committed was always one of the most significant positives about the SCSL, the transfer undermined the restorative and redemptive features of the prosecution which had the tendency to have grown the peace and restored rule of law. When Samuel Hinga Norman was indicted, it raised serious dust about the objectivity and impartiality of the whole process. Norman was one of the leaders of the CDF, which was widely considered as a liberation movement. In fact, President Tedjan Kannah was part of the CDF and even a senior member to Norman. So the failure to indict Kabbah while Norman was indicted smirked of scapegoat-ism and this did not go down well with people. The choice of cases and the criteria for choosing those to prosecute thus became a serious issue. Also, by issuing just 13 indictments, the court fell short of the people’s expectation for a war which lasted over 10 years. This small number of cases in itself became a recurring issue throughout the lifespan of the hybrid. Also, the anticipation that the SCSL will help create a judicial institution that is strong enough to contribute to the internal stability and the entrenchment of the rule of law, did not fully materialize. Although the Statute of the Court, at inception required that the deputy Prosecutor should be Sierra Leonean, the Government of Sierra Leone amended the Statute to alter this position. After this, the Government appointed a British QC to the position. This greatly alienated the Sierra Leonean Bar from the Court and the anticipated returns by way of quality exchange within the institution towards building the judiciary became a lost opportunity. It was only very recently that Sierra Leoneans started occupying higher positions of authority in the Office of the Prosecutor (OTP). As at the time the court went into residual mode, there was only one Sierra Leonean each on the Trial Chambers’ Bench and the Appellate Bench. It was initially believed that the Court site would become an immense utility to the State after the completion of its task. For instance, the International Centre for Transnational Justice once speculated that the offices, building, detention centres and other paraphernalia of the Court will go a long way in assisting the ailing and badly financed courts in Sierra Leone. But the current state of the Courts shows clearly that the Court rooms were not built with the peculiarity of Sierra Leone in mind and the government lacks the human and capital resources to maintain the site of the court.The SCSL was also an expensive investment on little justice that took a lot of time to deliver. In this wise, it has severally been said to be very similar to the international ad hoc tribunals that we discussed in extensor above. It has also been said that the Special Court, although closely related to the hybrid tribunals can be more accurately classified with the ad hoc tribunals since it is not a creation of domestic law but an international statue that was ratified for domestic purposes. In the same vein, the SCSL fell into the same pitfall of long drawn out prosecution of few people using very limited resources in a way that did not guarantee cost effectiveness at all. As illustration, each year, the whole Sierra Leonean judiciary operates on a budget of approximately 1 million dollars but each trial at the SCSL cost approximately 23 Million dollars. This obscenity is definitely a worrisome drawback. 4.2.5 Impact of Special Court for Sierra Leone (SCSL)The relative success of the SCSL, in spite of drawbacks and pitfalls, has significantly impacted international criminal justice on the African continent and elsewhere positively. Considered for being an improvement on the preceding hybrid tribunals before it, the SCSL has been severally commended for its procedural fairness. The fulfilment of its mandate in 2013 represents a great chapter in the administration of international criminal justice in the world. A recently commissioned survey in Liberia and Sierra Leone on the legacy and impact of the SCSL found that 79.16 per cent of the people believe that the SCSL accomplished its task of prosecuting and restoring justice, peace and the rule of law in that sub region.Perhaps the most notable contribution of the SCSL is its outreach program which ensured that a relationship was established between the Court and the victim community. The outreach program which was staffed by mostly Sierra Leoneans, with a deep reach into the Sierra Leonean district, was established as an office under the Registry of the SCSL. The outreach program educated the public about the activities, operation and existence of the SCSL and the Court’s effort in rebuilding the judicial institution in Sierra Leone. The outreach program used media such as the production of pamphlets and informational material in the local language for distribution amongst the community, town hall meetings attended by the Registrar of the Court and the Prosecutor, and workshops where members of the army, print and electronic media, formation of Peace Clubs and School Human Rights groups and debating competitions which helped create awareness, training and enlightenment on the work of the court. Also, Charles Taylor, who had terrorised the whole region for over a decade, was brought to justice before and by the Court. Given Mr Taylor’s connection and power, most of the people had given up hope of ever seeing him brought to justice. But SCSL achieved that and this rang a very loud warning across the sub region that the era of impunity would soon come to an inglorious end. Hence, the capture and successful prosecution of Mr. Taylor left a lasting impression in that region. Since then till date, Sierra Leone has enjoyed considerable amount of peace and development under President Helen Johnson Sirleaf and George Opong Weah. By also successfully transitioning into residual mode, the legacy of the court is being consolidated through the successful preservation and handing over of the Court’s archives, programs and contribution to jurisprudence to the people of Sierra Leone. 4.3 The Extraordinary African Chambers in the Courts of Senegal (EACCS) 4.3.1 Background to the Establishment and Creation of the EACCSDuring the long and torturous reign of President Hissène Habré in Chad, several grievous crimes against humanity were committed. But those most responsible for criminal acts, particularly the erstwhile President Habré were not yet brought to book. This created an important void that needed to be filled. However, the establishment of the Extraordinary African Chambers in the Courts of Senegal (EACCS) heralded a new chapter to fill this void. Inaugurated in February 2013, the EACCS was created to hold the former Chadian President responsible for the international crimes committed from 1982 to 1990 before he was unseated by President Idriss Déby. After he was deposed in 1990, Habré fled to Senegal where he lived in exile and successfully evaded justice until he was brought before the EACCS on 2nd July 2013 to answer to a charge of torture, war crimes and crimes against humanity. He was placed in pre-trial detention, answered to his crimes and was found guilty and convicted in 2016. The road to his prosecution was long and hard. For over a decade, several attempts were made but failed. The first attempt was by Senegal in the early year 2000. Criminal proceedings were commenced against him in Senegal, for torture, war crimes and crimes against humanity but the charges were unsuccessful and the case was dismissed by the Dakar Appeals Court on the ground that Senegal had neither jurisdiction over the crimes for which he was charged under its penal laws nor did Senegal have jurisdiction to try non-Senegalese for offences committed by them while they were abroad. This decision was confirmed by the Senegalese Court of Cessation on the same grounds and Habré walked free. After this unsuccessful attempt by Senegal, Belgium, under its universal jurisdiction law opened investigations on Habré and subsequently issued a warrant for his arrest for torture, war crimes, crimes against humanity and other violations of human rights. But when Belgium requested Senegal to extradite Habré to Belgium, the request was denied and Habré once more walked free. Similar extradition requests in August 2011 and January 2012 were also denied on the ground that Habré enjoyed immunity as a former head of state. When the African Union requested Senegal to take action on this issue, Senegal made several changes in its criminal law in order to fix any loopholes preventing them from prosecuting Habré and on this front, Habré brought a complaint to The Economic Community of West African States (ECOWAS) judicial arm (The Court of Justice of ECOWAS) against Senegal with claims that the new changes in the Senegalese criminal law were made specifically to punish him and were in violation of the principle that criminal laws do not take retroactive effect. In its considered decision, the Court of Justice of ECOWAS held that the only way Senegal could try Habré was through an ad hoc tribunal which had been used in similar situations in accordance with international customs.When the International Court of Justice (ICJ) found Senegal wanting in the delivery of its obligation to meet its obligations under the Torture Convention, the ICJ ordered the Senegalese government to either prosecute Habré or extradite him. This prompted an agreement to create the EACCS within the Senegalese court system was entered between the AU and Senegal, which agreement was adopted by the National Assembly of Senegal on 17 December 2012. Apart from Habré the EACCS also successfully prosecuted other officials of his regime. 4.3.2 The Jurisdiction/Structure of the Extraordinary African Chambers in the Courts of Senegal The EACCS was created from inside the existing judiciary of Senegal particularly the Dakar District Court and the Appeals Court. There are four levels of the Chambers to wit: an Investigative Chamber with four Senegalese investigative judges, an Indicting Chamber comprised of three Senegalese judges, a Trial Chamber and an Appeals Chamber. The Trial and Appeals Chamber each have two Senegalese judges and a president from another union African Member State.The Statute of the EACCS gives the Chambers jurisdiction over crimes against humanity, genocide, war crimes and torture which were committed in Chad between 7 June 1982 and 1 December 1990 which translated to the duration of Habré’s regime. Under the Statute, victims were allowed participation in a civil capacity while represented by counsel of their choice and the Chambers had the powers to order payment of reparations into a designated victims fund where it deems fit. 4.3.3 The Impact of the EACCS on AfricaPerhaps the most distinctive impact which the EACCS has on Africa is that it is the first tribunal set up by an agreement between an African State, Senegal, and the pan-African organization of states, African Union which has delivered successfully on its mandate of holding a former head of state responsible for international criminal acts committed during his tenure. This is a bold step of success, an indication in very strong terms, that Africa has come of age sufficiently enough to decide cases of impunity to a conclusive and successful end without international participation. With this obvious advantage over other hybrids before it, the EACCS was fully the product of a successful African synergy as against the others which were established with some degree of involvement of the United Nations. Secondly, the situation of the tribunal within the judiciary of Senegal has also gone a long way in showing that African courts have the capacity and the sophistication to deliver on well-worn parts and also chart a new course for themselves as in this instance where it had been unheard of for the judiciary of an African state to manage international criminal prosecution from investigation to conviction and even appeal without international involvement. Thirdly, the location of the court within the judiciary of Senegal also ensures that costs were managed effectively and results were delivered at the least possible financial implication for all the parties involved. This is a great plus for the tribunal in the grand scheme of things for future tribunals of its kind to come. There would be no need to build ‘white elephant’ structures, as done in the case of the SCSL, which structures became unfit for purpose due to the inability of the local institution to continue its management at the obscene costs of its maintenance by the erstwhile court after it discharged its mandate. This also ensures the fluid transition of the Court after the completion of its task since there would be no need to institute any residual mechanism. The location of the court in Senegal, also secured the impartiality of the process. By being a neutral ground for both the accused and the state, the possibility of impartiality was reduced to barest possible minimum as opposed to the situation where the Court had been situated in Chad for the same purpose. 4.4 Concluding Remarks In closing, while the giant strides made by the SCSL is commendable, the obscene cost of its justice and snail speed with which it moved suggested need for strategic improvements in the delivery of international criminal justice through the hybrid model in Africa. But most of the issues which called for concern with the SCSL were addressed in the EACCS. While being fundamentally different in structure from the SCSL, the EACCS’s approach to international criminal justice using the hybrid model is a distinctive achievement of the African State which may not be wished away. The obvious possibility and utility of this model through further innovations and improvements which would be covered in the next chapter, raises fresh hope that the end of the search for an institution for the prosecution of criminal justice in Africa is in sight. CHAPTER FIVESUMMARY OF FINDINGS, CONLUSION & RECOMMENDATION5.1 Summary of Findings This research shows how Africa relates with the different generations of international criminal justice prosecutorial systems towards revealing the pros and cons of each model from each generation, as used and adopted in Africa. The disillusionment of the Rwandan people with the ICTR is a starting point. The expensive and slow nature of the ad hoc tribunal failed to deliver the goods. A cheaper, local and domestic approach through the Gacaca courts secured more results than the ICTR did. The ICC also suffers from the same set of obstacles. It is slow, far away and does not guarantee the redemptive and restorative value of justice which is far more important in the African context than the retributive value. Thus the ICJ also suffered severe criticism. The Research reveals that the interaction of the African region with the different international criminal justice prosecutorial models thus far has created the issue of legitimacy and deficiencyAlthough the hybrids, SCSL and EACCS have also been criticised, they appeared from this research to offer the most by way of justice for Africans. But in spite of their achievement, more still needs to be done in order for the best prosecutorial system to emerge.5.2 Conclusion While it is true that the ICC has been under severe attack from stakeholders in the international criminal justice system for its fixation on the African continent alone, it remains true that Africa continues to suffer the most from civil strife, unrest and conflicts. Grievious atrocities are committed with impunity by dictators and abusers of power who usually escape justice because of the decapitation that the judiciary of their State suffers under their repression and resultant lack of the will and/or capacity to bring them to justice. Thus the need for international criminal institutions on the African continent goes without saying. There is a gaping hole that needs to be filled and the obvious shortcomings of the ICC and international ad hoc tribunals do not offer much by way of respite. Africa needs international criminal justice institutions. That said, the status quo cannot be maintained and new innovations are necessary to meet the dynamic needs of post conflict situations. The decision of the African Union to extend the jurisdiction of the African Court on Human and Peoples’ Rights to cover international crimes shows that there is a gap that needs to be filled. But while this is commendable progress, it is far from the solution because an African Union Court at the continental level will only remove distance from Netherlands to either Addis Ababa or Abuja but would still be far removed from the victim communities. Thus the establishment of an African Court does not negate or defeat the purpose which the hybrid tribunals serve. The dynamism and contextual pliability of the hybrid makes it the most suitable for the African context that individual post conflict situations require. It does not therefore completely negate the need for hybrid tribunals to cater for particular post conflict situations. Thus hybrid tribunals remain a very viable means of securing transitional justice in Africa. 5.3 Recommendation The impunity problem and the legitimacy crisis which international courts and international criminal ad hoc tribunals face in Africa are primarily because of the failure of these two international criminal prosecutorial models to cater for the need of the victim community and to own and be an active participant in the process of ensuring restorative and redemptive justice for a state emerging from the throes of war and conflict. The failure to adapt these models to suit the African context is a big challenge. When situated within the political machinations that undergird international criminal justice, the obvious dilemma leading to failure becomes obvious. Hybrid courts offer the best chance so far for the correction of this anomaly While the role that international organizations like the UN have to play in the security of international criminal justice cannot be overemphasized, their participation should at best make recommendations, be supervisory, and that of an ultimate umpire of last resort. The direct involvement of the UN in the formation of courts to try crimes committed within local contexts has led to preventable wastage of resources without much to show. The hybrid court offers a great reprieve. However, in order for the hybrid court model to enjoy more relevance as a mode of international criminal justice institution, it needs to find a place in a hierarchy where there is a functional international criminal court as well as possible regional and sub-regional Courts. The hybrid tribunals to come must embrace alignment with domestic judicial systems. Focus must be on the situation of the tribunal within the existing structure so that it can build and fortify the structure which remains after the task of the hybrid is done. Although previous attempts in places like Bosnia and Kosovo met with little success, and if the lessons learnt from their experiment is combined with the grand success of the EACCS example, then this can work in Africa.Finally, the one fit all approach currently being used by the ICC for international prosecution may continue to suffer the same fate.ie criticism of distance, legitimacy issues, expenses etc. What is recommended is that, the ICC may send its investigators and preliminary examiners to do their work in the location of the crime and report to the ICC. Once it is determined that the ICC will prosecute, a Court which will sit in the situation of the crime or very close by and work with the judiciary of the location state can now be put in place. 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