Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia
By Cesare Romano, André Nollkaemper, and Jann K. Kleffner
Summary written by Eric Brahm, Conflict Research Consortium
Citation: Romano, Cesare, André Nollkaemper, and Jann K. Kleffner. 2004. Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo, and Cambodia. International Courts and Tribunals Series. New York: Oxford University Press.
This volume explores the new phenomenon of so-called hybrid tribunals. In an effort to learn lessons from the shortcomings of the International Criminal Tribunals for the former Yugoslavia and Rwanda, as well as to address weaknesses common in transitional situations, these new internationalized courts have sought to more closely engage the local population. The courts created in Sierra Leone, East Timor, Kosovo, and proposed for Cambodia employed a mix of national and international legal expertise. The book bring together a number of different perspectives to describe the different ways in which the courts have operated and what their consequences may be for the future development of international criminal law.
Internationalized courts emerge, Cassese argues in his chapter, under a particular set of circumstances. National courts need to be at least partially functioning as these internationalized tribunals are built upon them. What is more, it may be domestically impossible to turn over control completely to the international community. Finally, they emerge in situations where the international community desires to do something, but not to the degree of setting up a full-fledged tribunal. Kleffner and Nollkaemper explore the interaction between internationalized and national courts. Although, in many respects, each country has realized this relationship differently, generally speaking the internationalized component has had a minimum of contact with domestic judiciary.
Mixed tribunals have a number of benefits. They can tap into local knowledge of culture, language, and norms. By holding them in the country in which the crimes occurred, the trials are more likely to have an impact on society - something the Yugoslav and Rwandan tribunals are criticized for not doing. Furthermore, there is greater possibility for the trials to contribute to the long-term development of the national judiciary. Finally, Cassese believes it may be a way to expedite justice while still adhering to international law. At the same time, bringing different cultures and legal traditions together can make cooperation difficult. In addition, there is the challenge of coming up with the funds to keep the tribunal operating. Ingadottir argues that they provide a more cost effective means of achieving justice [as compared to the ICTY (the Yugoslav international tribunal), ICTR (the Rwandan tribunal), or the ICC (the International Criminal Court)], but the criticisms mixed tribunals have faced and lack of funding raise questions about their future.
The growth of internationalized courts has also necessitated the growth of an international legal 'epistemic community'. Romano describes these legal experts: their qualifications, issues of identifying and recruiting talent, as well as procedures of assignment and dismissal. Swart provides an overview of the substantive criminal law that has governed the tribunals in East Timor and Sierra Leone as well as the proposed court for Cambodia. Friman does the same in terms of procedural law. In terms of legal assistance, Sluiter explores the extent to which states are obliged and in fact have assisted.
The collection explores the potential relationship between internationalized tribunals and the ICC. Benzing and Bergsmo argue that the ICC is unlikely to have the reach or the capacity anytime soon to subsume mixed courts. Colitti also sees a continued role for internationalized tribunals because of the geographical and temporal restrictions on the ICC's jurisdiction.
The United Nations Interim Administration Mission in Kosovo (UNMIK) court system is one prime example of this new trend. Cerone and Baldwin describe the court's basic legal structure and conclude that international judges have not increased the court's capacity, nor are they sufficiently independent of the UNMIK administration. We also get an insider's account of UNMIK's effort to bolster the judicial system. Rather than creating a separate jurisdiction, the UN deployed judges to work within the existing judicial framework. Cady and Booth argue that this made international involvement less controversial in Kosovo.
East Timor has also been a site of innovation with respect to internationalized courts. De Bertodano argues that the court has been hampered by a lack of political will and resources and has been unable to get sufficient cooperation from Indonesia. Lyons provides a mid-term assessment of the truth commission established in parallel to East Timor's tribunal. She finds that the commission's goals of finding truth and facilitating reconciliation have been in conflict and its relationship with the tribunal has been ill-defined.
The tribunal in Sierra Leone was given a broad range of tasks and there is little consensus as to the ability of the court to realize them all. While Smith is hopeful, her chapter focuses on the weaknesses of the temporal and subject matter jurisdiction assigned ot the tribunal. Mochochoko and Tortora describe the origins of the Sierra Leone tribunal's innovative Management Committee, the tribunal's governing body composed of representatives of the government, the UN Secretary-General, as well as financial and political sponsors. Schabas outlines the functions of the tribunals and the truth commission created to deal with the human rights abuses of the 1990s and raises issues of the two institutions relationship with each other.
The volume also addresses the prospective court for the Cambodian genocide. Etcheson discusses the political interests of domestic and global actors in promoting and thwarting efforts to bring justice to Cambodia and Meijer describes the Extraordinary Chambers in the Courts of Cambodia.