Established through a constitutional amendment and parliamentary legislation, the KSC & SPO is part of Kosovo’s domestic court system. At the same time, it is heavily internationalized. Created in conjunction with the European Union and based in the Netherlands, the court is staffed by international judges and prosecutors and applies both Kosovar laws and international customary and human rights law when making its decisions.
The KSC & SPO belongs to a distinct category of international criminal justice mechanisms called “hybrid courts.” By combining domestic and international elements, these courts have the flexibility to overcome some of the legitimacy problems that have plagued the International Criminal Court (ICC) and other international tribunals when they have tried to hold war criminals accountable.
The ICC was expected to replace hybrid courts
Legal experts first floated the idea of a hybrid criminal court in the late 1990s. Then-U.N. Secretary General Kofi Annan tasked a group of experts with developing a legal mechanism for prosecuting the Khmer Rouge for atrocities committed during its rule in Cambodia between 1975 and 1979.
After years of intense negotiations, the United Nations and the Cambodian government agreed on an institutional arrangement integrating international and national law, judges and funding structures. Leaders adopted similar hybrid arrangements in response to violence and conflicts in East Timor, Sierra Leone, Bosnia and Lebanon.
When the ICC was established in 2002, many assumed that the hybrid model would disappear. The ICC is the world’s first permanent international criminal justice institution, and many observers expected it to replace ad hoc arrangements such as hybrid courts.
But hybrid criminal justice mechanisms are again appearing around the world.
In 2015, a hybrid court in Senegal sentenced the former president of Chad, Hissène Habré, to life imprisonment for crimes against humanity, torture and war crimes. In the Central African Republic, a U.N.-backed hybrid tribunal is investigating armed conflict and violence against civilians. And efforts to create a hybrid justice mechanism to examine South Sudan’s violent transitional period are underway.
Why are hybrid courts making a comeback?
Compared with the ICC, hybrid courts can be tailored toward the specific historical, cultural and political context in which they operate. This is critical for building the foundation on which all justice mechanisms rest: legitimacy.
Legitimacy is the widespread belief that a court has the right to prosecute and dispense justice. Absent any police force or other way to enforce its decisions, the ICC and other international institutions rely heavily on the public perception of their legitimacy to ensure compliance.
But the ICC’s legitimacy is fragile. The court is staffed exclusively by international judges and prosecutors who are supposed to represent the global public and judge war criminals in the name of a common humanity. But “global public” and “common humanity” are abstract concepts that may mean very little to the victims of war crimes and crimes against humanity — or to those who committed or supported those crimes and feel accountable only to their home communities or nations. This distant claim makes it more difficult to convince various stakeholders that the ICC has the legitimate authority to prosecute and punish individuals around the world.
The ICC’s legitimacy has been further undermined by uneven geographical enforcement. After all, it has focused almost exclusively on crises in Africa. This has led African leaders to frame the ICC as a new form of imperialism, urging African nations to “get out of the court of the West.”
No evidence suggests that the ICC is explicitly targeting African individuals, but these allegations of anti-African bias are damaging the ICC’s reputation.
Hybrid courts can tackle these problems. Incorporating domestic judges gives local communities authority over the trial. Incorporating domestic law and legal customs gives expression to the identities, historical experiences and cultural values that are specific to the society in which crimes have allegedly been committed.
Hybrid courts are also better suited to deal with the dual nature of international crimes. Genocide, war crimes and crimes against humanity are assaults on the global public and direct attacks on local communities. Hybridity ensures that they are tried by both constituencies.
Perfection is impossible
Hybrid courts offer several advantages but are far from perfect. Incorporating locals from post-conflict societies raises its own set of problems, such as concerns over impartiality, witness protection and corruption.
But no international criminal justice mechanism will ever be perfect. After all, these courts deal with humanity’s worst crimes. They operate in extremely complex environments, facing political, legal and moral challenges. In the right circumstances, hybrid institutional arrangements can provide opportunities to address some of these challenges.