2. Resilience in ICL: Demarcating the concept

Resilience is a new term in the ICL vocabulary. Its meaning is not clear and remains subject to various interpretations. A variety of meanings is attached to the concept of resilience in different disciplines, from psychology and engineeringFootnote ⁷ to sociology and beyond.Footnote ⁸

The use of the term in scholarship and practice is not helpful in the elucidation of its meaning. Broadly speaking, resilience has both descriptive and normative uses. For some, resilience performs a primarily explanatory, backward-looking function, denoting, for example, the way that a society absorbed shocks and catastrophes. For others, however, resilience has normative hues. It is a characteristic that society should have and social systems should become. Depending on the commentator’s ideological viewpoint, resilience can then take different meanings.Footnote ⁹

In UN political discourse, the term resilience was forcefully brought to the fore through the emergence of the responsibility to protect (R2P) doctrine.Footnote ¹⁰ The latter stimulated a reconceptualization of humanitarian crisis and mass atrocity situations on the basis of ‘risk-resilience’ analysis and argued for the identification and strengthening of resilience factors, i.e., factors that would prevent mass atrocities.Footnote ¹¹ In that framework, the creation of post-conflict accountability mechanisms is considered to constitute a strategy employed by the international community to prevent future atrocities.Footnote ¹²

In international legal discourse, the definition of resilience appears to undergo a measure of adaptation to the corresponding descriptive and normative needs of each field. For example, Kammerhofer explains that an important analytical concern of the law concerning recourse to force (jus ad bellum) is to decipher the dynamics of resilience and change affecting the status and scope of the prohibition on the use of force and self-defence in international law.Footnote ¹³ Beyond, however, its definition by juxtaposition to the concept of change, no further definition of resilience is provided. Instead, indicators of resilience – here synonymous to stability – are identified, such as jurisprudence, scholarly literature, and state practice.Footnote ¹⁴ For its part, the International Law Commission in its 2016 Draft Articles on the protection of persons from disasters explains that ‘the capacity and knowledge of women and girls [to prepare for, respond to and recover from crisis] plays an important part in individual as well as community resilience’.Footnote ¹⁵ However, the Commission refrained from offering a definition of resilience or discussing its normative value.Footnote ¹⁶

In ICL, resilience features in discussions concerning the resilience of individuals. For example, authors talk of the ability of rape victims to testify as witness in ICTY proceedings as a mark of their individual resilienceFootnote ¹⁷ or argue in favour of the social reintegration of ‘resilient’ child soldiers.Footnote ¹⁸

In this context, the meaning of resilience as regards hybrid tribunals has not clearly materialized as a matter of law.Footnote ¹⁹ Discussion on institutional resilience is nascent at best. Accordingly, as explained in the Introdution to this special issue, resilience can be understood as the ability of a tribunal to resist or withstand external pressure and to contribute to national reconciliation.Footnote ²⁰

This definition draws from the celebrated 2014 Report of the Secretary General on R2P.Footnote ²¹ The latter made clear that building societies resilient to international crimes requires the creation and operation of political and legal institutions capable of defusing tensions and addressing violations before they escalate to mass atrocity.Footnote ²² Here, the concept of resilience stands for the ability to resist social phenomena that presage the commission of international crimes.

Within this general definitional framework, hybrid court resilience can be conceptualized through its two principal manifestations: internal and external. Internal resilience refers to a hybrid court’s ability to perform efficiently and legitimately in the face of domestic and international pressures.Footnote ²³ External resilience stands for the extent to which hybrid tribunals enable post-conflict states and societies to heal, reconcile, strengthen, and address the root causes of prior conflict.Footnote ²⁴ Of the two, internal resilience will be at the centre of this study, whereas external resilience will only be briefly touched upon. The contribution of judicial mechanisms on peace and conflict resolution merits separate in-depth empirical analysis and as such falls beyond the confines of the present article.Footnote ²⁵

As Wiebelhaus-Brahm has noted in his earlier contributions, the creation and maintenance of internal resilience is one of the abiding concerns of hybrid court commentators.Footnote ²⁶ This is because hybrid courts linger between the national and the international legal orders. As such, they are open and indeed often subjected to political pressure from both national and international stakeholders.Footnote ²⁷ In these circumstances, it is imperative to assess the extent to which hybrid courts are insulated by external political pressures in the selection of their cases and ultimately the legacy they leave behind.

In closing, this part addressed some definitional quandaries surrounding resilience as an ICL concept. For the purposes of the present article, it offered a definition of resilience and explained its two main dimensions. With that in mind, it is therefore time to begin our main investigation and explore the contours of resilience analysis to hybrid tribunals. The discussion for each tribunal will be structured as follows; first, each section will discuss the tribunal’s commitment to resilience as reflected in the relevant documents. Subsequently, each section will examine the practice and conclude with an assessment as to whether the resilience promises materialized in their case selection.

3. The Special Court for Sierra Leone

The case selection practice of the first modern hybrid criminal court – the Special Court for Sierra Leone – is arguably one of the best candidates for analysis. Both the Prosecutor and the Court made decisions with sufficient publicity and motivation for the deduction of certain tentative conclusions. The Court’s objectives are also well-documented. There is therefore sufficient material available in the public domain to assess the case selection policy underpinning the Court’s jurisdictional decisions through the lens of resilience.

To begin with, Article 1 of the SCSL Statute made clear that the Special Court was set up in order to prosecute the persons who bore ‘the greatest responsibility’ for certain crimes under domestic and international law committed during the Sierra Leone civil war from 1996 onwards.Footnote ²⁸ Through these prosecutions, the Special Court would contribute to national reconciliation, the restoration and maintenance of peace, and the strengthening of the judicial system of Sierra Leone.Footnote ²⁹ These statements show that the Court’s mandate was inextricably intertwined with considerations of external resilience and narratives of healing and national reconciliation.

In the same vein, internal resilience concerns – namely the ability of the proposed Special Court to operate regardless of political pressure and with due regard to rule of law guarantees – were equally important for the Court’s makers. In his letter to the UN organs requesting the opening of negotiations for the creation of the Special Court, the President of the Republic of Sierra Leone spoke of the need for ‘effective, secure, fair and credible justice’.Footnote ³⁰ He, thus, proposed the establishment of a Court which would ‘meet international standards for the trial of criminal cases while at the same time having a mandate to administer a blend of international and Sierra Leonean law on Sierra Leonean soil’.Footnote ³¹ The UNSC, for its part, replied by emphasizing the importance of guaranteeing ‘the impartiality, independence and credibility of the process, in particular with regard to the status of the judges and the prosecutors’, as well as the need to secure the resources necessary to ensure ‘the efficient, independent and impartial functioning of the special court’.Footnote ³²

The selection of cases was a particular point of contention between the President of Sierra Leone and the UN. The President stressed in his initial communication to the UN that he requested assistance in the establishment of a Special Court for the prosecution of crimes committed by the Revolutionary United Front and opposition forces only.Footnote ³³ Both the Security Council and the Secretary General rejected this approach. Instead, they took the view that the Special Court should dispense justice equally on all parties to the conflict.Footnote ³⁴ The final wording in the SCSL Statute did not reflect the position of the President but simply provided for the Court’s jurisdiction over persons ‘who bear the greatest responsibility’ – regardless of which side of the conflict they belonged to.Footnote ³⁵

It is, therefore, clear that the Special Court was designed with an explicit mandate to promote national reconciliation. At the same time, the Special Court was set up with due regard to the need to carry out its mission regardless of external pressure. The next question is whether these commitments were borne out by the Court’s case selection practice or whether they were mere lip service.

To begin with, there is evidence to support the view that the selection of cases for the Special Court took place regardless of external political pressure or favour for a side to the conflict. The list of the accused contained an equal number of suspects from all parties to the conflict and made it clear that no side would appear to receive preferential treatment.Footnote ³⁶ The prosecution of Norman, Fofana, and Kondewa was important in that context. The three suspects were leading figures of the national armed forces affiliated with the President’s winning side. Their prosecution was the clearest evidence of the Special Court’s commitment to equal treatment of all sides in case selection. It further showed that all parties committed atrocities, even if some may have been committed in the name of national defence.Footnote ³⁷

On the other hand, however, critical commentators have suggested that the selection of cases for trial before the Special Court is clear evidence of the latter’s inability to withstand external political pressure – or, in resilience terms, of its inadequate internal resilience. First, the Court did not have jurisdiction over peacekeepers and thus did not investigate allegations of crimes involving them.Footnote ³⁸ Second, beyond the trial of Charles Taylor, the financial, military, and other supporters of the other parties to the conflict were not investigated or prosecuted. In particular, the (mining) corporations usually connected with developed states and their contribution to the conflict were excluded from the ambit of the Court’s jurisdiction.Footnote ³⁹ Third, it has been suggested that the prosecution of Norman proceeded only because it was politically expedient for the Government to do so at the time.Footnote ⁴⁰ Finally, be it due to prosecutorial convention established by the ad hoc tribunals action in case selectionFootnote ⁴¹ or due to the UN’s explicit request,Footnote ⁴² it is questionable whether the Prosecutor could avoid prosecuting suspects from all sides to the conflict without incurring the wrath of the UN.

In that light, it is debatable whether the SCSL prosecution was fully resistant to external political pressure in its case selection. What’s more, the plot thickens due to a third decisive factor: the Court’s funding. Specifically, it was clear to David Crane, the SCSL’s first Prosecutor credited with the selection of all cases,Footnote ⁴³ that the Special Court was supposed to be a cost-efficient tribunal that would try only a short list of cases.Footnote ⁴⁴ The catalytic impact of the financial situation on case selection became especially pronounced in the Court’s sunset years of operation. The recollections of one of the Court’s last prosecutors are telling:

Against this backdrop, it would appear that donor commitment to the Special Court proved to be extremely influential in the selection of cases. To be sure, there is no evidence that such funding was made available or withheld in order to respectively force or prevent the prosecution of certain individuals. It may have well been the result of lack of interest in the work of the Special Court as time went by and the urgency of the Sierra Leonean conflict faded in donor states.

Notwithstanding these subsequent financial limitations, however, it would seem that the Prosecution enjoyed a relatively free hand in the selection of cases within the limits established by the drafters. Admittedly, some classes of potential suspects were excluded by the Court’s makers (namely peacekeepers and businesses). However, within these limitations, the prosecution was free to choose who to prosecute as well as the charges. Regardless of the final outcome of these cases, the fact that they were selected for prosecution to begin with shows that the Special Court enjoyed considerable internal resilience to external political pressure. To date, it is a rare instance of a court that brought proceedings to bear upon suspects of the incumbent government in the aftermath of an armed conflict.

4. The Extraordinary African Chambers – The Habré Court

The previous section assessed case selection in the context of the SCSL. It revealed many statements of commitment to the Court’s internal and external resilience in case selection by its political founders, as well as the Court’s own ministers. It argued that later in its life, this commitment ostensibly took second place to efficiency considerations and was affected by financial conditions – if not necessarily pressure aimed at shielding specific individuals. Admittedly, it may be a fine line separating the two; nothing would seem to preclude the possibility that certain prosecutions in Sierra Leone did not take place simply because financial priorities shifted in New York, Washington D.C. or Europe. Regardless, it is reasonably clear that the cases were selected by judicial officers in the performance of their duties, even though the selection itself stirred controversy and its contribution to social healing in Sierra Leone as a whole remains speculative.

However, there are also institutions where the mandate providers have established a hybrid court with specific accused in mind. In these circumstances, the prior extra-institutional case selection embedded in a hybrid court’s law challenges the usefulness of internal resilience as an analytical instrument.

A good example to that end is the case of The EAC tasked with the prosecution of Hissène Habré (hereinafter the Habré court).Footnote ⁴⁶ The trial of Chad’s erstwhile dictator took place in the aftermath of a long, legal-political ‘tug of war’ involving a number of African states, the African Union, and at least two separate international judicial instances.Footnote ⁴⁷ Ultimately, the Government of Senegal concluded an agreement with the African Union on the establishment of the EAC within the Courts of Senegal.Footnote ⁴⁸

Under Article 1 of the Agreement, the Chambers’ purpose was:

The Statute of the Chambers was annexed to this agreement.Footnote ⁵⁰ Their purpose was defined as the implementation of the decision of the African Union concerning the Republic of Senegal’s prosecution of international crimes committed in Chad between 7 June 1982 and 1 December 1990, in accordance with Senegal’s international commitments.Footnote ⁵¹ The jurisdiction of the Court was laid down in Article 3 as follows:

Ostensibly, the wording of these provisions would indicate that the jurisdiction of these chambers was broad enough to allow for the trial of many different cases. It bears many similarities to the SCSL precedent, at least insofar as it calls for the prosecution of ‘the person or persons most responsible’. This alludes to a margin of prosecutorial discretion in the selection of cases. However, a more nuanced look into the law and practice of the Chambers would arguably suggest otherwise, namely that the cases for trial were selected by the Court’s founders and were limited to the prosecution of the Habré case.

As a matter of law, this position is corroborated by the Court’s main documents read in the light of the preparatory works. Article 1 of the Statute and the first preambular paragraph of the Agreement make it clear that the purpose of the Chambers is the implementation of AU Assembly Decision 401/31-12-2012. This decision was labelled ‘Decision on the Hissene Habré Case’ and discussed the modalities for his trial.Footnote ⁵³

Additionally, the AU-Senegal Agreement made explicit reference to the decision of the ECOWAS Court of Justice concerning Habré’s challenge to the jurisdiction of Senegal’s ordinary courts,Footnote ⁵⁴ as well as the ICJ’s ruling in Belgium v. Senegal, which again focused on the trial of Habré and Senegal’s obligation to prosecute or extradite him under the UN Convention against Torture.Footnote ⁵⁵ The reference to the establishment of the Court as a means to ensure compliance with Senegal’s international commitments only serves as additional evidence pointing in the same direction.

As a matter of the Chamber’s practice, this reading is further corroborated by manifestations of political pressure aiming at restricting the Chambers solely to the prosecution of Chad’s former dictator. Specifically, the Prosecution charged five additional individuals with international crimes.Footnote ⁵⁶ However, none of them stood trial before the Chambers.Footnote ⁵⁷ As Carlson reports, when the prosecution attempted to explore questions that might implicate Chad’s current President Idriss Déby, the political pressure brought to bear nearly dismantled the Chambers.Footnote ⁵⁸

In that light, it is clear that the AU states parties had pre-selected the case to be heard and the accused to stand trial before the Extraordinary Chambers. Short of naming him, the provisions illustrated clearly Mr. Habré as the Chambers’ primary and sole concern.Footnote ⁵⁹

This account of case selection poses a challenge to the value of internal resilience as an analytical framework for the conceptualization of the operation and the persisting allure of hybrid courts. If internal resilience stands for an institution’s ability to resist external pressures to its operation, the Chambers’ record shows that they were, by design, unable to do so. The extra-institutional determinations on case selection were entrenched by the makers in the Chambers’ law from the beginning and were observed in its practice. As such, the value of any discussion of a hybrid court’s institutional resilience to external political pressure borders on the irrelevant. It may well be therefore that institutions such as the Habré court fall beyond the scope of application of internal resilience.

The Habré instance appears to be extraordinary insofar as it is relatively clear that the case selection was made by its mandate providers instead of the Court’s prosecuting authorities. Other instances, however, are more difficult to decipher and require a more nuanced examination of the factual context of a court’s operation, especially when such operation has yet to be concluded. An instructive example in that direction is the selection of cases before the ECCC, which will be examined next.

5. The Extraordinary Chambers of the Courts of Cambodia

The ECCC were established almost 30 years after the collapse of the Khmer Rouge regime by virtue of the promulgation of domestic legislation to that effectFootnote ⁶⁰ followed by an international agreement between Cambodia and the UN.Footnote ⁶¹ Under Article 1 of the Law:

The final formulation of this provision was the result of lengthy negotiations on the issue of case selection between the political parties involved. The turning point was the 1999 report of a group of experts appointed by the UN Secretary General to discuss the creation of the new institution. The experts highlighted that the focus should be on the prosecution of the ‘persons most responsible’ instead of only ‘the senior leaders’, as requested by the Cambodian Government of the day.Footnote ⁶³ The experts felt that this approach would allow the Chambers to hear cases not only of senior political figures but also of zone leaders and interrogation officers who committed massive atrocities.Footnote ⁶⁴ Taking into account the thousands of victims of large-scale crimes committed during the Khmer Rouge era, the experts noted the logistical and financial impossibility of bringing all perpetrators before the new Chambers.Footnote ⁶⁵ As such, they took the view that ‘the number of persons to be tried might well be in the range of some 20 to 30’.Footnote ⁶⁶

Among these 20–30 suspects there were specific individuals in the mind of the political negotiators. The memoirs of the key US negotiator and staunch support of the Chambers, David Scheffer are particularly revealing on point. In his recollections of the negotiating process, he explains that there were specific names identified for prosecution, such as Duch, Khieu Samphan, Nuon Chea, and Ieng Sary.Footnote ⁶⁷

Arguably, the reasoning of the Supreme Court Chamber’s first judgment corroborates this finding. In Duch, the defence challenged the Chamber’s jurisdiction, claiming that the accused did not qualify as both ‘a person most responsible’ and a ‘senior leader’ under Article 1. The Supreme Court Chamber rejected the objection. Drawing in part also from Scheffer’s memoirs, the judges stressed that the negotiators intended for the Chambers’ jurisdiction over two separate categories of accused to ensure that:

This finding was confirmed in the Trial Chambers’ subsequent jurisprudence.Footnote ⁶⁹

It is clear from the above that the formulation of Article 1 left a door open for the prosecution of suspects beyond the most notorious political figures. Therefore, as a matter of ‘black letter’ law, the ECCC could well be considered to enjoy broad internal resilience, insofar as nothing in the text seemed to definitely restrict the cases for prosecution.

However, practice suggests that this impression was not corroborated by the reality of the courtroom. It is telling that all attempts to proceed with subsequent cases beyond 001 and 002, featuring the aforementioned notorious figures, have been met with staunch opposition from both political and legal quarters.

In 2008, national co-prosecutor Chea Leang objected to the proposed opening of investigations against five additional suspects, provoking a legal-political quagmire. Eventually, the Court proceeded but with the cards firmly stacked against it; the domestic judges of the Pre-Trial Chamber were opposed to further cases, as was the Cambodian Prime Minister, who warned that additional prosecutions would lead to civil war.Footnote ⁷⁰

In this climate, the investigating judges’ attempts to convince observers of their independent action in case selection were weakened by subsequent resignations of UN staff and international judges, some of whom publicly attributed them to domestic resistance to further investigations.Footnote ⁷¹ Eventually, case 003 reached a stalemate; one of the accused died and as of 28 November 2018 the two co-investigating judges have disagreed on whether the surviving suspect Meas Muth merits trial as a ‘person most responsible’.Footnote ⁷² The same situation appears in case 004. Among the three suspects, the case against Im Chaem was dismissed as she was not considered a person ‘most responsible’.Footnote ⁷³

The national and the international prosecutors have issued public statements on their disagreement to try the two remaining accused for case 004, namely Yim TithFootnote ⁷⁴ and Ao An.Footnote ⁷⁵ Considering that the international co-prosecutor has confirmed that no new cases after 004 will be submitted,Footnote ⁷⁶ it may well be that the ECCC is rapidly approaching the conclusion of its work in discouraging circumstances. To make matters worse, international financial support for the continued operation of the ECCC has been a hotly debated issue that remains problematic.Footnote ⁷⁷

This narrative leaves a bitter taste.Footnote ⁷⁸ If nothing else, the history of the ECCC strengthens the view that the question of internal resilience in hybrid court case selection is largely moot. The Chambers’ authority was circumscribed precisely enough to exclude any investigation into the criminal responsibility of other states and their officers’ role in the commission of Khmer Rouge crimes.

Most of the suspects brought before the Court appear to have been marked for prosecution prior to its establishment. The formulation of the Law left a window open for prosecutorial discretion, particularly as regards the prosecution of individuals who committed serious crimes but did not form part of the top Khmer Rouge leadership. This window, however, did not materialize in the prevailing political, legal, and financial conditions surrounding the subsequent operation of the Chambers. As a result, only a handful of cases have so far proceeded to trial and the trial of the few surviving suspects is currently disputed. On balance, this state of affairs poses another challenge to the usefulness of internal resilience for hybrid court case selection. In tune with the last years of the SCSL and the entire operation of the Habré court, case selection policy at the Cambodia Chambers appears heavily influenced by negotiations predating its establishment, as well as by the lack of sufficient political and financial support to protect their operation from the vagaries of domestic and international politics. This state of affairs confirmed the fears of the UN and its staff that ‘the trials will turn out to be just a tool for domestic Cambodian score-settling and political intrigue’.Footnote ⁷⁹

6. The Specialist Chambers of Kosovo

The previous sections discussed the usefulness of internal resilience as an analytical tool in the case of two past and one present hybrid tribunal. They explained that in classic tribunal theory, the political branches responsible for the establishment of a tribunal select the crisis situation for investigation and leave the case selection to the prosecutor.Footnote ⁸⁰ In this context, assessing the resistance of courts and tribunals to political pressure would be relevant.

However, an assessment of the reality in the court room showed that the distinction between political choice of situation versus legal selection of cases was respected only – or mostly – in the first years of operation of the Sierra Leone Court. The practice before both the Cambodian and the Extraordinary African Chambers shows that both the situation and the subsequent case selection were political in character. In this context, a discussion of internal resilience appears irrelevant, as the cases are often selected extra-institutionally and the authority of the hybrid court is subsequently tailored to that selection. Having said that, an interesting question is whether internal resilience could inform the case selection of future hybrid institutions and can be used in predictive analysis; is an institution equipped de jure and de facto with sufficient safeguards against political pressure in the selection of its cases? To answer this question, we will now turn our attention to the 2015 Kosovo Specialist Chambers situated in The Hague.

To begin with, the Chambers were established pursuant to Article 162 of the Constitution of Kosovo as amendedFootnote ⁸¹ and the Law on the Specialist Chambers of Kosovo.Footnote ⁸² At first sight, the jurisdiction of the Chambers as laid down in these documents reflects the classic, open-ended formulation of jurisdictional provisions usual in many legal orders. The Chambers will have jurisdiction over a number of domestic, international and transnational offences committed between 1 January 1998 and 31 December 2000. The conduct in question falls within the Chambers’ jurisdiction, if it has a territorial or nationality connection to Kosovo.Footnote ⁸³ Specifically, the Chambers will have authority to hear cases involving offences that commenced or were committed in Kosovo, or offences committed by or against individuals having Kosovo/FRY citizenship.Footnote ⁸⁴ The Chambers shall have authority over natural personsFootnote ⁸⁵and will enjoy primacy in case of concurrent jurisdiction with other courts in Kosovo.Footnote ⁸⁶

On the face of it, the jurisdictional ambit of the Kosovo Chambers appears wide enough to allow for judicial case selection. For example, the Prosecutor and the judges have ample room to decide whether ‘conduct’ qualifies as commission in whole or in part within Kosovo’s territory. The list of crimes within the Chambers’ subject-matter jurisdiction is also broader – broader at least than that of the SCSL. It is delimited in terms of time to a two-year period; however, within this window of Kosovo’s history, the Chambers’ judicial authorities would appear to enjoy considerable case selection freedom.

At the time of writing, the Chambers have yet to make their first indictments public. Therefore, the available material may be too little to allow for anything more than highly tentative conclusions. Be that as it may, the position in this study is that, in reality, these open-ended jurisdictional provisions may prove less case selection neutral than they might appear at the outset. It would seem that these Chambers were established with specific individuals in mind, some named and others identifiable as a matter of position and ethnic origin.

Arguably, the preparatory works preceding the Chambers’ establishment buttress this position. Carla del Ponte, former ICTY prosecutor, claimed that serious human rights violations were committed by ethnic Albanian members of the Kosovo Liberation Army (KLA).Footnote ⁸⁷ Ostensibly, while del Ponte was willing to launch investigations, she stumbled upon jurisdictional limitations in the ICTY Statute, which the UNSC was not prepared to amend in spite of her appeals to that direction.Footnote ⁸⁸ The matter was taken up by the Parliamentary Assembly of the Council of Europe, which commissioned an investigation under Dick Marty. Its outcome became known as ‘the Marty Report’ and corroborated to a certain extent del Ponte’s suspicions.Footnote ⁸⁹ Following a lengthy investigation, the report identified a number of ethnic Albanian members of the KLA allegedly involved in the commission of serious crimes against ethnic Serbians, as well as the ethnic Albanian population in Kosovo. In turn, the publication of the Report led to renewed efforts under the auspices of the EU. In September 2011, a Special Investigative Task Force (SITF) was established by the EU within the Office of the Special Prosecution Office of the Courts of Kosovo to investigate and prepare the cases for trial.Footnote ⁹⁰

In 2014, the lead Prosecutor declared that he had enough evidence to issue indictments against senior KLA leaders for serious international crimes, but a viable court was needed for trial.Footnote ⁹¹ His statement made certain points clear. First, it underscored the need for a specialist court system, with court rooms insulated from witness intimidation and clan loyalty.Footnote ⁹² Second, the new court would be created in order to ‘fill the void left’ by the ICTY’s jurisdictional limitations, namely the prosecution of crimes committed during the post-Kosovo war period by KLA members.Footnote ⁹³ Third, prosecutions were necessary in order to ensure that KLA affiliated perpetrators would be subjected to ‘the same sort of international justice processes that have already been followed in relation to Serb perpetrators’.Footnote ⁹⁴

The President of Kosovo, by letter of April 2014, proposed to the EU High Representative the creation of a new court to hear the cases identified for prosecution by the SITF, in order to ensure the proper administration of justice.Footnote ⁹⁵ The President explained that the mandate of the Court would be limited to the SITF-identified cases.Footnote ⁹⁶ Approximately a year later, the Constitutional amendment and the Law on the Specialist Chambers were adopted by the Assembly of Kosovo.

In that light, while the jurisdictional provisions of the Chambers appear open-ended, in reality they seem designed to limit their authority to only the cases identified in the Marty Report and considered ripe for prosecution by the SITF. This is corroborated by a plain reading of Article 162(1) of the new Constitution:

Article 1(2) of the Law on the Chambers clarifies that:

Article 6 of the Law further explains that ‘the Specialist Chambers shall have jurisdiction over crimes set out in Articles 12–16 which relate to the Council of Europe Assembly Report’.Footnote ⁹⁹

It would seem therefore that, in light of the contextual elements highlighted above, the Kosovo Chambers have been tailor-made to address specific cases touched upon in the Marty Report and further investigated by the SITF Prosecutor. From the publicly available records, it becomes evident that, in all likelihood, the accused before the Kosovo Chambers will be ethnic Albanian members of the KLA, charged with crimes committed against ethnic Serbians or other Albanians. The Marty Report went even further and identified particular individuals; Hashim Thaçi, ‘the most dangerous of the KLA’s “criminal bosses”’;Footnote ¹⁰⁰ Xhavit Haliti, Kadri Veseli, Azem Syla, Fatmir Limaj, and Ramush Haradinaj are identified as individuals who seem to bear the greatest responsibility for numerous crimes.Footnote ¹⁰¹ Additionally, Shaip Muja is explicitly identified as a leading co-conspirator in the forcible extraction of human organs.Footnote ¹⁰² Sabit Geci, Riza Alija (alias ‘Commander Hoxhaj’), and Xhemshit Krasniqi were named as commanders of concentration camps, prosecuted at the district court of Pristina.Footnote ¹⁰³ While some potential suspects may be dead and others remain unidentified for security reasons, at least some cases have been selected prior to the Chambers’ establishment.

This would seem to be corroborated by the statements in the Specialist Prosecutor’s website. This makes clear that, in accordance with the law, the Specialist Prosecutor’s Office’s (SPO) role is twofold. First, the SPO is tasked to investigate and prosecute crimes in relation to conduct identified in the Marty Report. Second, the SPO is jointly responsible with the Chambers to ensure the fair trial of ‘individuals who have been the subject of a criminal investigation conducted by the EU’s “Special Investigative Task Force” (“SITF”) since its creation in 2011’.Footnote ¹⁰⁴ Additionally, the Law explicitly provides that the SPO succeeds the SITF, which concluded its operation in September 2016.Footnote ¹⁰⁵

In conclusion, the evidence provided above does not necessarily preclude that the Specialist Prosecutor has identified additional perpetrators. However, it does indicate that at least some of the Chambers’ cases may have been selected prior to the institution’s establishment. Any conclusions at the moment remain highly speculative, absent publicly available evidence of the Chambers’ practice.Footnote ¹⁰⁶ However, if the future practice remains confined to the individuals already pre-selected for prosecution by political processes pre-dating the Chambers’ establishment, the question of resilience to external political pressure would be equally moot.

7. Concluding remarks

This article set out to assess whether, and if so to what extent, the concept of resilience is an appropriate analytical tool for the selection of cases by hybrid tribunals. It zoomed in on case selection as the first and arguably the most appropriate stage of hybrid tribunal’s process for analysis. Following a brief foray into the definitional contours of resilience, it discussed the law and practice of four different hybrid tribunals on point. In doing so, it explained that according to the ‘orthodox’ view, diplomats and politicians choose the general situation of crisis requiring the establishment of a hybrid tribunal, whereas the specific cases are selected by independent judicial officers.Footnote ¹⁰⁷ It further explained, however, that in practice specific cases are often either singled out for prosecution or excluded from prosecution by the political stakeholders involved in the creation and operation of a tribunal.Footnote ¹⁰⁸

Against this background, this article criticized the transposition of resilience analysis to the context of hybrid tribunals for two reasons. Firstly, a one-size-fits-all approach is not appropriate. It requires a preliminary case-by-case analysis to appreciate whether a specific tribunal is a suitable object of analysis. Secondly, even if the selection of cases by a hybrid court is a suitable object for a resilience analysis, this should not be expected to necessarily contribute new insights to the broader discussion. As such, this contribution argued for critical reflection prior to the transposition of resilience in international criminal discourse, instead of getting swept away by its ‘conceptually seductive’ nature and its alleged compatibility with neoliberal prescriptions of victim empowerment.Footnote ¹⁰⁹

As regards the first point, this article takes the view that resilience may be inapplicable in part to the analysis of certain tribunals. This position stems from the varied political environment surrounding hybrid tribunals and its impact on the selection of their cases.

Specifically, in the context of case selection before the SCSL, following a bras-de-fer between the UN and the Government of Sierra Leone during the negotiations, it was agreed that the Court would investigate crimes from all parties to the conflict. The subsequent process gave flesh to this promise, as evidenced by the proceedings against Norman. Within this context, where the wording of the Statute was framed in relatively neutral terms and the international support was present, it is possible to speak of an analysis of the SCSL’s internal resilience within the confines of the negotiated limitations in its statute.

Conversely, the all-pervading political influence in the selection of cases of the other hybrid courts appears to render any analysis of their internal resilience moot. In these instances, there is strong evidence to support the view that the cases were selected by diplomats and negotiators – not judges or prosecutors. In Cambodia, the cases that actually proceeded to trial at the ECCC were earmarked long before its establishment. When the international prosecutors and investigating judges decided to propose further investigations, they met fierce resistance which paralyzed the Court. A similar situation appears in the Habré tribunal. Its preparatory works show that the new court would focus on his trial. In theory, it was possible to open additional cases. In practice, however, when the prosecutors and investigators of the Extraordinary Chambers attempted to do so, they faced insurmountable obstacles due to political pressure. As regards the Kosovo Chambers, their establishment followed on the footsteps of the Marty Report and the EU SITF investigations. These documents circumscribe the otherwise broad jurisdictional parameters of the Kosovo Chambers and illustrate the prosecution of certain cases at a minimum. It remains to be seen what will happen if the Kosovo Prosecutor decides to indict cases other than those identified therein.

In the last three instances, it is arguably futile to discuss a tribunal’s capacity to withstand external political pressure in case selection. Political choices were already embedded in the statute as part of the institution’s core mission to such an extent that it left virtually no leeway for prosecutorial choice in the selection of cases. In this context, state co-operation or opposition to other prosecutions made manifest the futility of this endeavour. As such, the different approach in case selection followed in these four examples buttresses the significance of the context in an analysis of resilience. This variation supports the conclusion that a tribunal’s internal resilience analysis of its case selection is meaningful only when a preliminary assessment concludes that the tribunal itself is an object suitable for such analysis. In this framework, relevant indicators to determine suitability can be whether the cases have been selected by political stakeholders either explicitly – as evidenced by the text of a constitution – or implicitly as corroborated by the record of the pre-establishment negotiations and state opposition to certain prosecutions.

As regards the second point, even in instances where it is possible to analyse the case selection practice of a hybrid court using resilience, it is doubtful whether such analysis would yield any new insights. This is made clear particularly by the use of internal resilience in case selection. Effectively, the key question here is whether a hybrid court is resistant to political pressure in the selection of cases or whether case selection is based on political considerations, power, and patronage.Footnote ¹¹⁰

However, this quandary is not new in international criminal justice discourse. Mass crimes involve numerous perpetrators, who cannot be brought to justice before ad hoc institutions. Choices need to be made; the question of who makes them and on what grounds has been a point of debate at least as early as the IMT Nuremberg process, where it was shown that the selection of cases was strongly influenced by allied intelligence agencies.Footnote ¹¹¹ In the ICTY context, former Prosecutor Carla del Ponte’s request for an explicit UNSC authorization to prosecute crimes against Serbs in Kosovo from 1998–2000 were not heeded.Footnote ¹¹² At the ICC, it has been argued that the selection of cases by the Prosecutor is driven by many factors, couched in legal terms but ultimately open to non-legal interpretation.Footnote ¹¹³ The implications of the interconnection between law and politics in the selection of cases and the operation of international and internationalized tribunals is a well-rehearsed theme in the relevant scholarship.Footnote ¹¹⁴ It might, therefore, be that even in cases where resilience may be applicable, the analysis of a hybrid tribunal’s internal resilience in case selection may not lead to new insights into their practice.

However, resilience may not be entirely useless either. Instead of discarding the notion altogether, it might be more productive to adjust it to the realities of a tribunal’s function. As indicated in other contributions to this special issue, hybrid courts are best viewed as one among many components of a broader transitional justice project including potentially also domestic prosecutions, truth commissions, compensation schemes, and conditional amnesties.Footnote ¹¹⁵ In that context, their ad hoc, temporary nature makes them ideally suited to perform a specific duty; address the need for justice in notorious cases that would have no reasonable possibility of seeing the light of any court-room in the world due to jurisdictional restrictions.Footnote ¹¹⁶ It is in this context that their contribution to national reconciliation and their resistance to external pressure might become discernible. From that perspective, the question of resilience and the selection of cases should be assessed not only within the limited confines of the tribunal, but rather as a matter of the broader strategy pursued by an entire reconciliation project.

Arguably, this approach could be consistent with human rights law. The latter accepts that victims of international crimes have a right of access to justice and that states have a duty to investigate and prosecute gross human rights violations.Footnote ¹¹⁷ However, it does not recognize a right to avoid judicial scrutiny or a right of the accused to penal forum-shopping.Footnote ¹¹⁸ The fact that a court is created to prosecute conduct criminal at the time of its commission does not per se affect the rights of individuals, provided that the criminal process respects fundamental human rights guarantees of due process.Footnote ¹¹⁹ The argument ‘why me and not the others’ does not resonate with human rights discourse any more than a claim of equality to escape punishment does. In this sense, the restoration of public trust to the rule of law would seem to constitute a significant part of their mission and ultimately the best guide to assess hybrid court resilience.