Una versión más completa de este trabajo, analizando los casos de Sierra Leone, Bosnia y Camboya será publicado en el Numero 4 de la Revista En Letra. Ante cualquier duda, contactar al autor.
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The project of human rights has become a modus vivendi and a modus operandi for states, individuals and multilateral entities. Although there is much more to human rights than their legal dimension, we can trace the regulatory nature of human rights law back to the creation of the United Nations (UN) and the Universal Declaration of Human Rights in 1948. Even before the creation of the UN, the late League of Nations and its Permanent Court of International Justice are testaments of a long legal tradition of ideas of justice within international relations that paved the way for human rights today (League of Nations, 1919, Permanent Court of International Justice, 1920). Indeed, deriving legal sense from the United Nations Charter, new treaties have codified a set of principles that regulate and apply human rights law worldwide.
As the eminent legal scholar Antonio Cassese puts it, significant progress has been achieved by legislating human rights laws internationally and domestically (Cassese, 2004, 2012). In fact, since the Vienna Convention on the Law of Treaties in 1969, the creation of the category of jus cogens or preemptory norms not permitting any objection or derogation by treaty (Fellmeth and Horwitz, 2009) has given way for the supremacy of a set of principles that, in turn, command the legality of certain state behaviour (Cassese, 2012).
The doctrine of jus cogens has developed today including key human rights norms such as: banning genocide, slavery, torture and upholding the principle individual criminal responsibility and the right of access to justice (Cassese, 2004, 2012, Sikkink, 2011, 2012). These preemptory norms are codified in a collection of human right treaties including the Convention on the Prevention and Punishment of the Crime of Genocide, the International Criminal Court (ICC) statute and the large body of jurisprudence developed by the ad hoc tribunals for the former Yugoslavia and Rwanda as well as the vast number of opinio juris by the International Court of Justice.
Based on the right of access to justice, tribunals around the world have used and upheld jus cogens norms to fight impunity and guarantee victims’ redress. In fact, since the Second World War’s Nuremberg and Japanese tribunals, as Sikkink would argue, there has been a ‘justice cascade’ where human rights prosecutions have influenced international politics raising the status of the fight against impunity worldwide (Sikkink, 2011). Guaranteed under international law, the right of access to justice has reached a pinnacle with the creation of the ICC in 1998 extending its jurisdiction for crimes against humanity, genocide and war crimes to 123 member states, with the latest party to the Rome Statute being the State of Palestine.
Indeed, in cases of war crimes, genocide or crimes against humanity, also known as atrocity crimes, the doctrine of jus cogens obligates states to prosecute such violations of human rights (Cassese, 2004). In this sense, several judicial arrangements in places like Argentina, South Africa and Tunisia have succeeded in prosecuting human rights abuses. Together with critical pressure exerted by civil society, the human rights normative framework developed within jus cogens has become an integral part of the international community (Finnemore and Sikkink, 1998, Sikkink, 2011).
However, there are more than a few examples in practice where the right of access to justice – let alone any justice mechanism – has been available for victims of human rights abuses. Since the early 2000s the human rights normative framework has suffered significantly due to geopolitical and capacity constraints in the international system. Key events signaling the deterioration of the right of access to justice include the widespread use of torture by states, the emergence and re-emergence of complex conflict situations, the denial of justice for General Franco’s crimes during the Spanish Civil War, impunity in Mexico’s drug war, Russia’s annexation of Crimea and continued fighting in East Ukraine, instability in the Middle East, violence in Libya and Yemen and the ongoing war in Syria and Iraq. These examples point at a current cross-road regarding the place the right of access to justice occupies in the international system and raises worryingly questions regarding impunity worldwide.
In this somber context, the failure of the international community to act has been partially answered during a recent debate organized by the International Center for Transitional Justice. Taking a long-term historical view, the UN Human Rights Chief Al Hussein argued that “state ownership of the fight against impunity” is paramount (ICTJ, 2015). Similarly, ICC prosecutor Bensouda noted that departing from the Rome Statute states have the primary responsibility to prosecute human rights offenses (ICTJ, 2015). On this point, Harvard’s Professor Ignatieff agreed that although the international community cannot escape the tyranny of “the vital interests of powerful states”, access to justice for victims is better served when “citizens of the same country [face] each other” (ICTJ, 2015). In this sense, we are reminded that an effective human rights normative framework is primarily a domestic one.
However, acknowledging that post-conflict states willing to adhere to the human rights normative framework typically inherit judicial systems unfit for a process of transitional justice, the international community has a role to play under the jus cogens doctrine (Kerr and Mobekk, 2007). By transitional justice, we mean a “range of judicial and non-judicial mechanism aimed at dealing with a legacy of large-scale abuses of human rights” (Kerr and Mobekk, 2007, p.3). In this context, hybrid tribunals have been used in recent years as a mechanism to narrow the impunity gap.
Bearing in mind the crucial allocation of political will from post conflict states behind hybrid tribunals, these have the potential to create opportunities for reform and domestic capacity building of the judicial sector in order to create the conditions for access to justice for victims of atrocity crimes domestically (Kerr and Mobekk, 2007). Indeed, hybrid tribunals were specifically designed to “contribute to sustainable peace and the rebuilding of a society based on the rule of law” (Kerr and Mobekk, 2007, p.3). Hybrid tribunals’ mandate was envisioned part judicial and part developmental, harnessing the legal technical knowledge domestically while carrying out human rights prosecutions (Dickinson, 2003).
Defining Hybrid Tribunals
Hybrid or ‘internationalized’ tribunals “blend the international and the domestic as a product of judicial accountability-sharing” (Holvoet and de Hert, 2012, p. 229) between a host state and international organizations. To date, hybrid tribunals have been used in the context of transitional justice in Sierra Leone, East Timor, Kosovo, Bosnia Herzegovina, Cambodia and Lebanon. Born out of the experience of the ad hoc tribunals for the Former Yugoslavia and Rwanda, hybrid tribunals are mutually agreed between the post-conflict state and, typically, the UN. This type of agreement renders an accountability-sharing scheme where both the state and the international community design and implement the court’s mandate.
Hybrid tribunals are designed to “offer legitimacy by providing ownership without affecting independence and impartiality… while also building domestic capacity” (Holvoet and de Hert, 2012, p.229). Moreover, key to their name, as Dickinson (2003) explains, these tribunals mix domestic with international law in line with fair trial international standards. Another key hybrid element is the inclusion of international and domestic judicial personal. All hybrid tribunals to date have included this mix preserving the tribunal’s independence and transparency while assuring domestic legal fluency (Schröder, 2005). These three elements of hybrid tribunals, namely: proximity to victims, blending domestic and international law as well as combining international with domestic judicial personal, is coupled with a fourth element: the premise of domestic capacity building.
As explained above by Kerr and Mobekk, post-conflict states enabling a transitional justice process, typically inherit broken and ineffective justice institutions and begin a process of rule-of-law reforms to address past human rights abuses (Kerr and Mobekk, 2007). From the adjudication of complex human rights legal cases, hybrid tribunals have the potential to spur institutional learning at the different levels of the judicial system (Chehtman, 2013). Hence, hybrid tribunals are considered an advantageous way of supporting weak post-conflict institutions while locating human rights prosecutions domestically. In this context, the purpose of hybrid tribunals is to “impact…local institutions [by] building capacity; rebuilding judicial systems and promoting international human rights standards throughout the local community” (Holvoet and de Hert, 2012, p.230). Emphasizing the fact that domestic prosecutions tend strengthen local judiciaries (ICTJ, 2015), even in the tragic case of Syria, Human Rights Watch argues that “a dedicated and specialized judicial mechanism embedded in the national justice system with support from international judicial experts could work to narrow the existing impunity gap” (Human Rights Watch, 2013, p.15).
Thus, hybrid tribunals, and their premise of capacity building, have the potential to play a critical role in domestic capacity building in order to narrow the impunity gap. The purpose of capacity building mechanisms within hybrid tribunals is to embed domestically the human rights normative framework creating ownership and locating jus cogens responsibilities within the state
In fact, the hybrid tribunal model continues to be relevant in the fight against impunity. Currently, a new hybrid tribunal has been proposed in the Central African Republic (Amnesty International, 2015). With the special note to the active jurisdiction of the ICC in the Central African Republic, the proposed hybrid court would focus on cases not already investigated in The Hague (Kersten, 2015). This novel approach will enable redress for victims while advancing the main premise of jus cogens in international criminal law. Moreover, the ongoing trial against former dictator Habre in Senegal is another testament of the importance of hybrid tribunals to bring justice to victims in a system of geopolitical realpolitik. Thus, concluding, from the static justice model of domestic or international justice, hybrid tribunals have irrupted in the global legal design to bring justice closer to victims in the face of extraordinary violent times. And, they are here to stay.
AMNESTY INTERNATIONAL. 2015. Central African Republic Key Step Toward Justice [Online]. London: Amnesty International. Available: https://www.amnesty.org/en/articles/news/2015/04/central-african-republic-key-step-toward-justice/ [Accessed April 2015].
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CASSESE, A. 2012. Realizing Utopia: the future of international law, Oxford University Press.
CHEHTMAN, A. 2013. Developing Local Capacity for War Crimes Trials: Insights from BiH, Sierra Leone, and Colombia. Stan. J. Int’l L., 49, 297.
DICKINSON, L. A. 2003. The promise of hybrid courts. American Journal of International Law, 295-310.
FELLMETH, A. X. & HORWITZ, M. 2009. Guide to Latin in international law, Oxford, Oxford University Press.
FINNEMORE, M. & SIKKINK, K. 1998. International norm dynamics and political change. International organization, 52, 887-917.
HOLVOET, M. & DE HERT, P. 2012. International Criminal Law as Global Law: An Assessment of the Hybrid Tribunals. Tilburg Law Review: Journal of International and European Law, 17, 228-240.
HUMAN RIGHTS WATCH 2013. Syria: Criminal Justice for Serious Crimes under International Law. New York: Human Rights Watch.
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KERR, R. & MOBEKK, E. 2007. Peace and justice, Cambridge, Polity.
KERSTEN, M. 2015. Why Central African Republic’s Hybrid Tribunal Could be a Game-Changer [Online]. Justice in Conflict: Justice in Conflict. Available: http://justiceinconflict.org/2015/05/14/why-central-african-republics-hybrid-tribunal-could-be-a-game-changer/ [Accessed May 2015].
LEAGUE OF NATIONS. 1919. Covenant of the League of Nations [Online]. Geneva: League of Nations. Available: http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3dd8b9854 [Accessed January 2015].
SIKKINK, K. 2011. The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (The Norton Series in World Politics), WW Norton & Company.
SIKKINK, K. Human Rights Prosecutions as Mechanisms for Translating Human Rights Law into Improved Practices. Rights and their Translation into Practice: Towards a Synthetic Framework, 2012 University of Arizona. University of Arizona.
SCHRÖDER, A. 2005. Strengthening the Rule of Law in Kosovo and Bosnia and Herzegovina: The Contribution of International Judges and Prosecutors. Center for International Peace Operations.
 Jus cogens are codified under Articles 53 and 64. In the words of Jiménez de Aréchaga, rapporteur of the Vienna Convention, jus cogens means that: “The international community recognizes certain principles which safeguard values of vital importance for humanity and correspond to fundamental moral principles” CASSESE, A. 2012. Realizing Utopia: the future of international law, Oxford University Press.P.171
 For a full list of treaties codifying jus cogens norms, see: GHANDI, S. 2012. Blackstone’s International Human Rights Documents, Oxford, Oxford University Press.