Conceptualising Internationalisation in Hybrid Criminal Courts
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CONCEPTUALISING INTERNATIONALISATION IN HYBRID
CRIMINAL COURTS
by NEHA JAIN*
While hybrid tribunals have become increasingly popular in the fight against impunity for inter-
national crimes, there is little clarity on exactly what elements must be present to classify a
tribunal as hybrid. Answering whether or not a tribunal is hybrid in character can have crucial
implications for its jurisdiction and competence, the applicable law, and its status. Recent deci-
sions of tribunals confronting this question have chosen to consider a variety of characteristics
of the tribunals, rather than seek a definition based on essential elements. This paper defends
this approach to conceiving of the internationalisation element of hybrid tribunals, in favour of
a precise definition. It also develops a methodology that can be used for determining whether a
tribunal is hybrid through a process of analogical reasoning and proposes criteria that may be
applied by courts for this purpose.
I. INTRODUCTION
With growing international consensus on the need to fight impunity for international crimes,
hybrid, or mixed tribunals appear to have become the order of the day. Hybrid courts
are said to hold out the promise of being able to transcend the problems of both purely
domestic as well as purely international prosecutions: they are considered more independent
and impartial than a domestic court and can overcome the burden of garnering resources
and expertise in post-conflict societies. They are also cheaper and easier to set up than
international courts and usually being located in the countries they serve, suffer less from a
legitimacy deficit and can build local capacity.1
Despite the expectations generated by the setting up of international courts and the
polarised academic debates on their viability,2 there is little discussion on exactly what
elements must be present to classify a tribunal as a hybrid or internationalised tribunal.3
Commentators on the nature of hybrid tribunals are unanimous in their acknowledgement
that there is no single model of a hybrid tribunal, though most would include the Sierra Leone
Special Court (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the
Regulation 64 Panels in Kosovo, and the Special Panels for Serious Crimes (SPSC) in East
Researcher, Max Planck Institute for Foreign and International Criminal Law; Candidate for the DPhil in law,
Oxford University; MPhil, BCL (Oxon). This paper was first presented at the Asian Society of International
Law's Young Scholars Workshop. I am grateful to the participants for their comments on the earlier draft.
See L. Dickinson, The Promise of Hybrid Courts (2003) 97 AJIL 295 [Dickinson, Promise]; E. Higonnet,
Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform (2006) 23 Ariz.
J. Int'l & Comp. L. 347.
2 For a brief survey of different academic opinions, see Dickinson, Promise, ibid.; Higonnet, ibid.; S. Linton,
Cambodia, East Timor and Sierra Leone: Experiments in International Justice (2001) 12 Crim. L. F. 185;
S. de Bertodano, Current Developments in Internationalized Courts (2003) 1 J.I.C.J. 226.
3 For an excellent analysis of the problem, see S. Nouwen 'Hybrid courts: The Hybrid Category of a New
Type of International Crimes Courts' (2006) 2 Utrecht Law Review 190.
(2008) 12 SYBIL 81-95](ViewImageLocal?handle=hein.journals/singa12&div=8&collection=&method=preview&ext=.png&size=3)
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Conceptualising Internationalisation in Hybrid Criminal Courts
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