Hybrid Courts and Regional Accountability Mechanisms

Innovative approaches to seeking accountability through hybrid courts and the possibility of a future African Criminal Court

Hybrid tribunals

 

Hybrid tribunals combine both national and international aspects in their composition, law, staffing, location and jurisdiction. Typically located within or near the jurisdiction where international crimes occurred, hybrid courts are principally adopted in contexts where a national judiciary lacks the capacity or independence to manage the complex or contentious judicial processes necessary to prosecute these most serious of crimes, or where national laws lack jurisdiction for prosecuting international crimes.1 They blend elements of national and international law as well as employ local and international staff. Examples of hybrid courts include the Special Court of Sierra Leone (SCSL), the Special Tribunal for Lebanon, and the Special Criminal Court in the Central African Republic.

In post-conflict situations, domestic courts tend to suffer from myriad problems: political interests inappropriately influence courts, security threats can jeopardise trials, and magistrates often receive low pay, contributing to the risk of corruption. Establishing an internationalised court can help mitigate and counter the effects of potential bias or lack of judicial independence in a domestic legal system. This is particularly true, given the politics inherent in the commission and adjudication of international crimes. Furthermore, by adopting elements of international law and procedures, hybrid courts can provide a possible means of overcoming domestic barriers to accountability, such as inappropriate amnesty provisions for international crimes or laws granting high-ranking officials immunity.2

As a blended solution between national and international options, hybrid tribunals often use local judges, legislation and institutions in combination with international law and personnel. While their internationalised components serve as a significant bulwark against political influence as compared to a purely national court, there may still be a risk of deference to state sovereignty, and biases embedded in national legislation or judicial procedure may still influence proceedings.3 If not carefully designed, combining international and domestic features can also create contradictions or redundancies, as well as the possibility of ‘forum shopping’ by the respective legal teams as they choose between differing parallel legislations or procedural rules.

An array of political and legislative arrangements has led to the establishment of hybrid courts in numerous contexts, each featuring varying degrees of foreign involvement. Hybrid tribunals can be treaty-based institutions, such as the SCSL, or a domestic court combining international assistance and legislation, as is the case at the Extraordinary Chambers in the Court of Cambodia (ECCC). In some examples, international legal professionals were incorporated into the domestic judicial systems by special agreements between the United Nations and national authorities, as was the case of special courts in Kosovo and Timor-Leste. The Extraordinary African Chambers (EAC) in Senegal were established within the Senegalese court system through an agreement between the African Union and the government of Senegal.

By virtue of being situated in the country itself, hybrid courts have the potential to contribute, by developing and strengthening the domestic judiciary in ways rarely possible at a purely international court. Compared to international tribunals, hybrid tribunals transfer much more in terms of skills and resources directly to the national judiciary, through its establishment, daily work and enduring influence on the culture and operations of the judicial system. One aspiration of hybrids is therefore to ensure that local staff gain the necessary skills to investigate, prosecute and adjudicate international crimes and human rights violations. Perhaps most importantly, the proximity to the victims and communities most affected by the crimes prosecuted allows for much more direct engagement and observation than does a purely international process, thus increasing the potential that justice is seen to be done, something that would in turn require a concerted and creative approach to outreach programming.

Hybrid courts in West Africa

West Africa has been home to two hybrid tribunals, the SCSL and the EAC, which respectively saw former Liberian President Charles Taylor convicted of aiding and abetting international crimes in Sierra Leone and former Chadian President Hissène Habré convicted of crimes against humanity. While international interest in hybrids has ebbed and flowed with time, the successes of these institutions in holding senior political figures to account might well explain why hybrids remain popular in the region. Following Yahya Jammeh’s escape to exile in Equatorial Guinea, The Gambia has contemplated the possibility of creating a hybrid court to address the human rights violations and possible crimes against humanity committed by his regime. In Liberia too, current President George Weah has faced growing pressure from numerous quarters to create a hybrid court to investigate and prosecute crimes committed during the Liberian civil wars.

Play Video

International Criminal Justice in West Africa

Roland Adjovi, International Law Advisor for the Global Maritime Crime Programme in West Africa at UNODC, analyses the interplay between national, regional and international judicial mechanisms and their application in West Africa. He also discusses various legal instruments, tools and mechanisms, such as the Malabo Protocol, the African Court on Human and Peoples’ Rights, the International Criminal Court and hybrid courts.

Citations & References

1:  UN Office of the High Commissioner for Human Rights (2008) Rule of Law Tools for Post-Conflict States: Maximizing the Legacy of Hybrid Courts 

2:  Ibid.

3:  Rahmat Mohamad (2012) “Access to International Justice: The Role of the ICC in Aiding National Prosecutions”, AALCO Journal of International Law

Resources & Commentary

Kirsten Ainley and Mark Kersten Dakar guidelines on the Establishment of Hybrid Courts (Wayamo Foundation, LSE Institute of Global Affairs: 2019) 

The Hybrid Justice portal was established by Kirsten Ainley and Mark Kersten to evaluate the impacts of hybrid courts and tribunals on states and societies in transition. 

The Dakar guidelines explore key decision points and options for designing hybrid tribunals that are efficient, impactful and resilient to political influence. The report is aimed primarily at practitioners.

Sarah Williams “Hybrid and International Criminal Tribunals: Selected Jurisdictional Issues” (2012)

This book discusses the grounds for jurisdiction of hybrid or ‘internationalised’ courts, as well as the factors driving an increased role for these tribunals in international justice. The book points to a paradigm shift away from purely international courts and trials towards a hybrid model, which allows for more state control as well as more capacity-building.

UN Office of the High Commissioner for Human Rights Rule of Law Tools for Post-Conflict States: Maximizing the Legacy of Hybrid Courts (2008)

This handbook focuses on the potential impact of establishing hybrid courts on the domestic justice system of post-conflict states. It explores practical challenges involved in setting up hybrid courts with capacity-building impacts on a national judiciary, with the focus on building political support and creating effective mandates.  It also addresses policy and practice questions surrounding the management of the interrelationship between hybrid and domestic courts.

Is there an African Regional Court with jurisdiction to prosecute international crimes?

 

The short answer is no, though there may be one in the future. Of the continent’s four regional courts, the African Court of Justice, the African Court on Human and Peoples’ Rights (AfCHPR), the African Court of Justice and Human Rights and the African Court of Justice and Human and Peoples’ Rights, only the AfCHPR is currently operational.

The African Court of Justice and Human Rights was created on paper in 2008 and its mandate was extended in 2014 to cover international crimes. Yet, there remain significant legal, practical and political obstacles to it becoming operational.

What is the African Court on Human and Peoples’ Rights?

The AfCHPR has competence to hear cases concerning the interpretation and application of the African Charter on Human and Peoples’ Rights (African Charter), the Protocol establishing the AfCHPR, and other relevant human rights instruments ratified by the states concerned. The Protocol establishing the AfCHPR was adopted on 9 June 1998, entered into force on 25 January 2004, and the court became operational in 2008.  

The AfCHPR exists to protect human rights on the African continent but is not a criminal court and does not determine culpability for crimes committed by individual perpetrators. Rather, its mandate covers state obligations as defined in the African Charter and other related human rights instruments. Hence, it receives complaints about and issues decisions on state responsibility for human rights violations. The Court also has a mandate to issue advisory opinions at the request of African Union (AU) member states, the AU or any of its organs, or any African organisation recognised by the AU. While advisory opinions of the AfCHPR are non-binding pronouncements, they may nonetheless assist requesting entities in the interpretation of human rights norms stipulated in various instruments. 

What is the African Court of Justice on Human and Peoples’ Rights (ACJHPR)?

When establishing the AU in 2000, member states created the African Court of Justice (ACJ) as a court to deal with inter-state matters and interpretation of the Constitutive Act of the Union.  Following concerns relating to costs and efficiency, however, the AU decided to merge the functions of the ACJ and the AfCHPR (created in 1998) into one regional court to be known as the African Court of Justice and Human Rights (ACJHR). This took place in July 2008, when the AU adopted the Protocol on the Statute of the African Court of Justice and Human Rights (the Merger Protocol). 

Subsequently in 2014, in response to concerns about the application of the principle of universal jurisdiction, the AU decided to vest the ACJHR with an additional mandate over international and other serious crimes. In June 2014, the AU adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (International Crimes Protocol), thereby creating the African Court of Justice and Human and Peoples’ Rights (ACJHPR).

The respective protocols must be ratified by 15 member states for either court to be established and operationalised. As at January 2021, the Merger Protocol had been ratified by eight member states, while the International Crimes Protocol had not been ratified by any state.  

If it becomes operational, the ACJHPR will consist of three sections, namely, a general affairs section, a human and peoples’ rights section, and an international criminal law section. While the general affairs section will assume the mandate of the ACJ and the human rights section will assume that of the AfCHPR, the international criminal law section will empower the court to try individual and corporate perpetrators of international crimes. 

Resources & Commentary​

Charles C. Jalloh, Kamari M. Clarke and Vincent O. Nmehielle “The African Court of Justice and Human and Peoples’ Rights in Contexts: Development and Challenges” (Cambridge: 2019)  

This volume compiles scholarly reflection and inquiry into the Malabo Protocol, providing detailed analysis of the treaty’s legal, practical, procedural and political innovations and challenges. 

FIDH “Practical Guide on The African Court on Human and Peoples’ Rights: Towards the African Court of Justice and Human Rights” (2020) 

This guide is designed as an accessible and practical tool, aimed at civil society actors and victims of human rights violations in African countries, to introduce these actors to an emerging African regional judicial system and help equip them to engage with the AfCHPR and future ACJHR.  

Amnesty International “Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court” (2017) (EN/FR)

This report offers a useful overview of the history and content of the Malabo Protocol 

What are the expected benefits of the ACJHPR?

 

The proposed African Court of Justice and Human and Peoples’ Rights would exercise jurisdiction over an extensive list of international crimes, going beyond any other international court or hybrid criminal tribunal. In addition to genocide, crimes against humanity, war crimes and aggression, the ACJHPR would also have power to try the crime of unconstitutional change of government. Its jurisdiction further extends to piracy, terrorism, mercenarism, corruption, illicit exploitation of natural resources, money laundering, and trafficking in persons, drugs and hazardous waste. The International Crimes Protocol also includes corporate criminal liability for serious crimes, a provision of particular concern on the African continent, where corporate entities have been central players in many serious crimes.4

As a regional court with jurisdiction to try international crimes, the African Court could act as a bulwark against impunity for international crimes in Africa, while equally serving as a complement to domestic courts and the International Criminal Court (ICC). An African regional criminal court could help ensure that accountability is achieved closer to affected communities and in contexts where national courts lack the capacity or political support for prosecutions. An African criminal court could also help reduce the enormous caseload facing the ICC. With its broader mandate and less restricted criteria for case admissibility, the ACJHPR could complement the ICC’s work by prosecuting a wider range of perpetrators and pursuing accountability for serious crimes falling outside the purview of the Rome Statute. The ACJHPR’s focus, for example, on transnational organised crimes could encourage states and international bodies to liaise more effectively with their international counterparts on the investigation and prosecution of such crimes. 

What concerns exist about the ACJHPR?

 

The ACJHPR’s broad mandate would make strides in extending the scope of international humanitarian and criminal law. On the other hand, the struggle that the ICC has faced in recent years managing its comparatively narrower jurisdiction is an indication of just how complex and daunting it may prove to be when it comes to managing the ACJHPR’s much broader mandate. This is especially true, given the long list of crimes under the ACJHPR’s jurisdiction and the current lack of any prioritisation among them.

As a further concern, international courts are extremely expensive, and the AU already faces chronic funding difficulties. Without a strong show of financial and political support from AU members, the expense of running the Court could prove prohibitive.5 

Furthermore, the International Crimes Protocol envisages immunity for heads of state and other senior state officials, based on their function during their tenure of office (Article 46A bis), a provision that has been heavily criticised for promoting impunity. As the court has not yet become operational, it remains to be seen how this provision would work in practice and whether it would effectively give the ICC sole jurisdiction over alleged atrocities committed by senior government figures. The provision also only applies to potential ACJHPR trials, meaning that an accused perpetrator could not invoke it before another court, such as the ICC, or rely on it to render an ICC case non-admissible.6 

Detractors may assuage their fears to some degree by noting that the provision only applies while the official is in office, and that in principle, it should not therefore protect a person for criminal liability once his or her tenure has ended.7 This raises the question, however, of whether the provision would give certain government figures an incentive to hold onto power to avoid investigation and prosecution. 

Citations & References

4:  Charles C. Jalloh, Kamari M. Clarke and Vincent O. Nmehielle (2019) The African Court of Justice and Human and Peoples’ Rights in Contexts: Development and Challenges, Cambridge University Press

5: Manisuli Ssenyonjo (2016) “The African Court of Justice and Human and People’s Rights ‘International Criminal Law Section’: Promoting Impunity for African Union Heads of State and Senior State Officials?” International Criminal Law Review

6:  Jalloh et al. 2019 

7:  Ibid.

Resources & Commentary​

Manisuli Ssenyonjo “The African Court of Justice and Human and People’s Rights ‘International Criminal Law Section’: Promoting Impunity for African Union Heads of State and Senior State Officials?” (International Criminal Law Review: 2016)

Establishing this court would be a major challenge, given its broad mandate and the chronic lack of funding for AU organs. Without a show of strong political will from AU members to address these problems, Ssenyonjo finds the Court cannot be a suitable alternative to the ICC.

Muyiwa Adigun “Rome Statute, International Criminal Court, complementarity, African Court of Justice and Human and Peoples’ Rights, unwillingness and inability” (African Journal of International Criminal Justice: 2018) 

The article assesses how a wide range of domestic African courts go about applying the African Charter on Human and Peoples’ Rights. The West African case studies included are Nigeria, Senegal, Benin, Togo and Ghana. 

Zekarias Beshah Abebe “The African Court with Criminal Jurisdiction and the ICC: A Case for Overlapping Jurisdiction? (African Journal of International and Comparative Law: 2017)

Abebe argues that concerns that the ACJHPR will overlap with the work of the ICC are unfounded.  The crimes within the jurisdiction of the African Court go well beyond those under the ICC’s jurisdiction, and the court would likely primarily not target ‘those bearing the most responsibility’, as required by the mandate of the ICC.

André Mbata Mangu “The International Criminal Court, Justice, Peace and the Fight Against Impunity in Africa: An Overview” (African Development: 2015)

Mangu contends that the AU is unlikely to end impunity and promote peace on the continent, if it bypasses the ICC by establishing an international criminal law section mandated to deal with international crimes within the African Court on Human and Peoples’ Rights.

Sarah Nimigan “The Malabo Protocol, the ICC, and the Idea of ‘Regional Complementarity’” (Journal of International Criminal Justice: 2019

The article examines the Malabo Protocol and the possible interaction between the African Court of Justice and Human Rights (ACJHR) and the ICC. It concludes that the ACJHR “offers a useful framework to analyse the potential role of regional mechanisms within the international criminal law project, broadly considered”.