Hybrid Tribunals

The Rome Statute of the International Criminal Court expressly states that the ICC is to be "complementary" to national jurisdictions. The principle of 'complementarity' was overwhelmingly agreed upon during the negotiation of the Rome Statute. The complementarity provisions of the Statute ensure that the ICC will not supersede national courts -- which retain primary responsibility for investigating and prosecuting international crimes – unless they are unwilling or unable to proceed themselves. On the contrary, the ICC provides a strong incentive for responsible State authorities to take genuine action.

The ICC thus aims at improving both the quantity and quality of national prosecutions of crimes like genocide, crimes against humanity and war crimes. At the same time, the record is not strong with respect to the fair and effective pursuit of such crimes by 'front-line' States. Competition for resources, weakness of governmental institutions, the stature and ideological motives of the perpetrators, resentment of international pressure and simple absence of political will have all frustrated efforts to ensure accountability in the past.

The ICC will not eliminate all of these problems by itself or in the short-term. As a result, the international community and national governments will have to learn how to work together to fill what has been called ‘the impunity gap’ by providing assistance and encouragement for trials at the national level. One important means of so doing has been –and is likely to continue to be-the establishment of ‘hybrid’ tribunals such as those in Sierra Leone, East Timor and Cambodia. These bodies have typically been established by agreement between the United Nations and a given government in the wake of a serious conflict in an effort both to address crimes of concern the international community and to assist that society’s transition to democracy, peace and the rule of law. At their best, such bodies can provide a welcome sense of local control over the justice process, can bring accountability close to the people, and can establish jurisdiction in a way that recognizes local traditions and meets local needs. At the same time, these bodies pose real problems in their attempt to incorporate different types of law, different levels of expertise, and different models of management and funding. Such difficulties must not be allowed to interfere with the pursuit of justice or to let these bodies fall below international standards of due process.

To find out about the Justice Initiative’s work in Cambodia, click here