(co-hosted by Australia, Liechtenstein, Romania, International Bar Association (IBA) and International Centre for Transitional Justice (ICTJ))
Overview by Elia Cernohlavkova, Research Associate PILPG NL
Hybrid tribunals and specialized chambers form an integral part of the principle of complementarity. The ultimate aim of such institutions is to provide justice for victims, whose needs shall be given due consideration.
Civil society plays a crucial role in meeting the needs of the victims as well as ensuring an effective administration of justice.
To conform complementarity, states should support national initiatives for the adjudication of international crimes as a matter of priority.
The Ambassador of Liechtenstein introduced this side event and underlined how hybrid tribunals and specialized chambers support the Rome Statute System. The Ambassador of Romania added that the mandate of the tribunals is to facilitate complementarity, in which interstate dialogue, civil society, and justice for victims play an important role.
Following the introductions, the International Center for Transnational Justice (ICTJ) introduced its report on access to justice at hybrid tribunals, which will be published on the Organization’s website. The report provides an overview of national and international accountability mechanisms as well as the court system’s role in the fight against impunity. The aim of the report is to help practitioners understand the practice of running hybrid courts. It is therefore a technical and practical tool, which draws on the experiences of existing courts including the Special Tribunal for Lebanon or the Special Court for Sienna Leone. The report provides a timeline for creating a hybrid court and gives information on prosecutorial policies and strategies, the structure of tribunals, effective measures to provide redress to victims, and financing.
The International Bar Association (IBA) introduced a complementary report, dealing particularly with issues of fairness and equality of arms at the ICC. The report gives the ASP an opportunity to address and strengthen the processes. It discusses the right to representation and how the right shall be implemented to avoid abuse of victims. The report also elaborates on structures making legal representation possible for both the accused and victims. It proposes that the registrar or an independent defense office should provide support for defense and victims, as well as training and monitoring, which is now largely done by the civil society. Also, a clear framework for victims’ participation and reparations, which until now has been done in an ad hoc manner, shall be created in the future.
The discussions then shifted to the panel, which consisted of Ms. Donlon (the Registrar of the Kosovo Specialist Chambers), Ms. Guzman (the Magistrate of Special Jurisdiction for Peace in Colombia), Mr. Haynes (Lead Council for victims at the Special Tribunal for Lebanon) and Ms. Kassande (the Head of Office of ICTJ, Uganda)
Ms. Donlon discussed the challenges of setting up a registry. According to her, the challenge lies in running processes in parallel. She mentioned that the following processes are particularly challenging: receiving a legal mandate and support thereof; setting up a provisional budget and organizing donors conferences; strengthening internal governance to increase trust into the organization and its financing, finding appropriate premises (including a maximum security detention area).
Ms. Guzman then talked about the Peace Agreement in Colombia and its current national implementation. She mentioned that Colombia is implementing the Agreement on the background of being in preliminary examination by the ICC. Ms. Guzman underlined the difficulty of setting up a court in such a political and controversial environment. A Court implementing the Agreement was nevertheless successfully set up and is now in operation for more than ten months. It has jurisdiction over guerilla members and state armed forces. In line with the Peace Agreement, it grants conditional liberties and amnesties as long as no international crimes were committed. Out of the 700 requests for a conditional liberty, 200 were granted. Out of 400 amnesty requests, only two were successful.
Mr. Haynes continued with the topic of victim participation and the issue of reparations. According to Haynes, reparations proceedings should be “divorced” from the conviction of the accused and should be dealt with as soon as a situation arises. Such a process would remove unnecessary technical difficulties, speed up the process, avoid disappointments of acquittal, compensate victims of all sides, and remove the pressure on the trial chamber to convict in weak cases. In case of an acquittal it would also not absolve the accused for paying reparations. Mr Haynes also advocated for the decrease of the number of participants in a trial to make a trial more efficient. Finally he elaborated on the need of taking victim participation more into account and defining the role of victims and a victims’ council better.
Lastly, Ms. Kassande talked about complementarity and the international crimes division in Uganda. Mentioning the Juba Peace Negotiations between the Lord Resistance Army (LRA) and Uganda, Ms. Kassande said that an important aspect of getting the LRA to the negotiating table was their curiosity on the form of accountability and the role of the ICC. According to Kassande, the Court dealing with the conflict in Uganda is a good example of challenges of the complementarity system. Kassande suggested that the biggest difficulty in adjudicating international crimes before the Court was which legal framework is applicable. The legal framework aspect proved difficult especially for crimes that happened in the 1980s when an international criminal law framework did not yet exist. Kassande also addressed the difficulty of aligning the prosecutions with the amnesties that were previously granted to facilitate peace.