1. Introduction
The innovation of internationalized, or ‘hybrid’, criminal justice mechanisms in the late 1990s was driven in part by the realization that the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) were not having the desired impacts on the societies in question.Footnote 1 The International Criminal Court’s (ICC) limited capacity, jurisdictional constraints, and major powers’ hostility toward it have contributed to the continued relevance of hybrids for the pursuit of international criminal justice in the twenty-first century. To be sure, the appeal of hybrids is partially that they are cheaper. However, the ICTY, ICTR, and ICC have also been criticized for being geographically removed from the conflict zones they were designed to address.Footnote 2
While some observers caution against expecting anything more from hybrid courts than the prosecution of perpetrators,Footnote 3 advocates of hybrid courts often put forward justifications that are consistent with resilience rhetoric. Situating the courts closer to conflict-affected societies is intended to help countries recover from past atrocities and to help inoculate them against future violence. The introduction to this Symposium defines the term external resilience as denoting the extent to which hybrid mechanisms enable post-conflict states and societies to heal, reconcile, strengthen, and address the root causes of prior conflict. This interest in the impact of hybrid courts overlaps with discussions of legacy of such courts among scholars and practitioners.Footnote 4 Legacy discourse in relation to hybrid courts relates to how to maximize the positive impact of the court upon the society in question. Many of these areas of impact are ones that theoretically may make societies, and individuals, more resilient. In short, attention to legacy may promote resilience.
Although promoting what this Symposium describes as external resilience is widely believed to be a raison d’être of hybrid courts, there is relatively little empirical data to support many claims about how to maximize the impact. This is the case for at least three reasons. First, many hybrid courts are relatively recent incarnations, some of which are still operating as of mid-2020. As such, not enough time has passed to draw conclusions about the impact of many courts. Second, scholars and funders have tended to focus on hybrid courts’ creation, operations, and completion strategies. The long-term effects have attracted more attention comparatively recently. This leads to the third reason for the limited research on the promotion of external resilience, namely methodological challenges. Outcomes like healing and reconciliation are difficult to measure empirically. Moreover, it is challenging to disentangle the causal effect of a hybrid court over time from other domestic and international factors that may influence outcomes of interest.
For a hybrid court to promote external resilience in the long run, it seems likely that it must be truly independent and unbiased. This Symposium uses the term internal resilience to refer to the extent to which the design of hybrid tribunals enables them to function robustly and with legitimacy in the face of external pressures from donors, host states, domestic and international actors which oppose the mechanism, and other interested parties. Practitioners, among others, provide advice about how to design hybrid courts and how they should behave to maximize their own independence.Footnote 5 Further, internal resilience may be essential for hybrid courts’ promotion of external resilience. However, these claims are typically based upon normative judgements or impressionistic conclusions reached before courts have finished their work. Indeed, as long as it does not compromise principles of fairness and neutrality, a court that is responsive to stakeholder demands may have a more significant impact.
In this article, I explore the concept of resilience and its relevance for evaluating hybrid courts’ design and their impact on societies that have experienced periods of mass violence and repression. I begin by tracing the evolution of the concept of resilience from the fields of materials science and ecology to human responses to natural and human-made disasters. Resilience is a contested concept that sometimes connotes a resistance to change or an ability to return to a previous state of being, whereas other definitions emphasize adaptation to develop new ways of delivering key functions. Then, I examine the policy implications of how one defines this concept for the architects and the staff of hybrid courts. From there, I assess how the way one conceives of resilience shapes the assessment of the circumstances under which hybrid courts are more likely to be beneficial for violence-affected societies. To do so, I draw upon existing research on a broad range of hybrid courts for illustrative purposes. I conclude by reflecting upon the utility of adopting resilience language in the study of hybrid courts. Resilience may be seductive conceptually because it provides a vision of empowerment and autonomy for victims and affected communities. However, resilience thinking is also consistent with neoliberal prescriptions that are contrary to the realization of the type of emancipatory justice that many hybrid court advocates seek.
2. Exploring the concept of resilience
The international development community increasingly employs resilience language as it tries to better understand why some communities, and societies more broadly, have widely divergent capacities to respond to natural and human-made crises. In 2014, both the United Nations Development Program’s (UNDP) ‘Human Development Report’ and the World Bank’s ‘World Development Report’ devoted considerable attention to resilience.Footnote 6 Yet, there is no consensus on what resilience means. As Ken Menkhaus describes it, ‘resilience is not a concept – it is a conceptually-loaded word, one that carries many potential meanings from a variety of fields’.Footnote 7 The definition of resilience one adopts has implications not only for whether and how hybrid courts might promote external resilience but, with respect to either internal or external resilience, whether it is reasonable to even ask the question.
The concept of resilience has a long, multi-disciplinary history. Resilience first emerged in materials science, where the term typically describes, for example, building materials’ ability to withstand natural phenomena like heat, extreme weather, and earthquakes.Footnote 8 The social sciences sometimes similarly conceive of resilience as the property of being able to resist change. Others, however, see resilience as an ability to continue functioning, though perhaps in a different manner, after some kind of stimulus. One of the first uses of resilience in the study of humans was in psychology. Beginning in the mid-twentieth century, psychologists were increasingly interested in how individuals responded to trauma, aging, and other life changes.Footnote 9 Psychologists wanted to know why some individuals and families were able to persevere and function effectively while others did not when faced with such events.
Subsequently, social scientists have applied the resilience idea to a range of political, social, economic, and environmental systems in order to assess their vulnerability and adaptability to shocks. One of the earlier uses of resilience as adaptability was by the ecologist C. S. Holling. He argued that, given the profound impact humanity was having on the natural world, it was fanciful to think that the earth could be returned to its pre-Industrial Revolution state.Footnote 10 In fact, in Holling’s view, it should be rare for any type of system to be in equilibrium. Rather, systems are in constant flux as they respond to changing circumstances, however minor or profound. Recognizing this, Walker et al. put forward a definition of resilience that is particularly apt for societies in which hybrid courts are typically established, where major economic, social, and political change is happening. Specifically, they characterize resilience as the ability of a social system to ‘absorb disturbance and re-organize while undergoing change so as to still retain essentially the same function, structure, identity and feedbacks’.Footnote 11
In this conception, resilient societies absorb shocks, but they are rarely unchanged by them. In fact, it may not be desirable to return to pre-shock conditions. Structural, or physical, violence may have given rise to conflict, so to return to pre-crisis circumstances would be undesirable. As the UNDP puts it, the promotion of human resilience involves ‘removing the barriers that hold people back in their freedom to act. It is also about enabling the disadvantaged and excluded groups to express their concerns, to be heard and to be active agents in shaping their destinies’.Footnote 12 In light of that, perhaps unsurprisingly, resilience scholarship has increasingly taken on normative dimensions as researchers and policymakers outline what social systems should look like.Footnote 13 However, it is not necessarily clear what the ideal state of a social system is or should be.
As the examples in this section also illustrate, the concept of resilience is applied to a variety of units of analysis. Psychologists, for example, generally view resilience as a characteristic of individuals. As social scientists from a range of disciplines, including economics,Footnote 14 political science,Footnote 15 sociology,Footnote 16 and planning,Footnote 17 have used the concept, they have typically studied it in the aggregate. In this conception, resilience is a characteristic of societies, communities, families, or households, for example. As I discuss below, conclusions about specific hybrid courts and policy recommendations for promoting external resilience are likely to vary depending on the unit of analysis one adopts.
3. Hybrid courts and resilience
Hybrid courts have proliferated for a variety of reasons. One explanation is that they are much less expensive than the ad hoc international tribunals or the ICC.Footnote 18 In addition, the mix of international and domestic involvement ‘may be more likely to be perceived as legitimate by local and international populations because both have representation on the court’.Footnote 19 Moreover, the fact that hybrid courts are situated within the country they are designed to address may have several benefits. First, they are close to witnesses and evidence.Footnote 20 Second, the presence of domestic staff should ensure greater appreciation of and sensitivity to local language, customs, and circumstances that might help the court operate more smoothly.Footnote 21 Third, their location in-country might diminish states’ sovereignty concerns.Footnote 22 Fourth, an international presence may shield domestic judges from intimidation by their governments or other groups in society.Footnote 23 Fifth, having the proceedings take place close by may make them more accessible to and meaningful for victims.Footnote 24 Finally, more generally, confronting the past through a hybrid court may have a broader impact on society by tarnishing the reputation of perpetrators and prompting improvements in the domestic legal system.Footnote 25
Although hybrid court scholars and practitioners rarely use the language, many of these alleged benefits are conceptually connected to resilience. When it comes to internal resilience, hybrid courts might continue to operate effectively and legitimately by resisting external pressure or by adapting to it. In Section 3.1, I examine arguments about hybrid courts’ ability to promote resilience in either form. Then, in Section 3.2, I turn to external resilience. Among other things, healing and reconciliation could connote a return to a previous state, consistent with some conceptions of resilience. However, strengthening society and addressing root causes clearly suggests a desire to move to a new state of being. Below, I evaluate the existing empirical evidence for hybrids’ effects on resilience in either sense of the word.
3.1 Improving the internal resilience of hybrid courts
One of the abiding concerns of hybrid court watchers is the creation and maintenance of internal resilience. Yet, operating in this space between the domestic and the international leaves hybrid courts open to pressure from all sides. Hybrid court officials routinely complain about the political pressures they face.Footnote 26 Political interference might be felt when the court is being designed and/or during its proceedings.Footnote 27 Unwittingly, hybrids produce what Hinton calls a justice façade in which their foundations in international law and transitional justice norms mask power relations domestically and internationally.Footnote 28
Inoculating hybrid courts against political interference is a major concern for experts on hybrid courts. Concerns typically focus on interference from national governments. Many assert that the Cambodian government frequently interferes with the ECCC’s work.Footnote 29 With domestic judicial systems often decimated and/or complicit in past atrocities, powerful domestic actors are not used to having a judicial check on their power. Sometimes, the international community provides a counterweight. When the ECCC was under construction, the UN and the Cambodian government could not agree on the proportion of international and domestic judges.Footnote 30 Eventually, the parties agreed on a compromise in which at least one foreign judge would need to agree with Cambodian judges on a decision.Footnote 31
International involvement is not a panacea, however. The roles of and relationship between the national government and the international community need to be clearly articulated up front. The Special Panels for Serious Crimes in East Timor (SPSC), for example, suffered from buck-passing by the UN and the Timorese government.Footnote 32 If foreigners play too strong of a role, locals may view the court as neo-imperial.Footnote 33 This risk is particularly high following unilateral intervention, as in the case of the Iraqi Special Tribunal.Footnote 34 Some fear that the UN Security Council’s imposition of the Special Tribunal for Lebanon (STL) has undermined its credibility domestically.Footnote 35 While the Extraordinary African Chambers in the Courts of Senegal was established to prosecute former Chadian President Hissène Habré, it was created by the African Union and Senegal with no input from Chad itself.Footnote 36 The desire for international recognition and eventual entry into the European Union figured prominently in Kosovo’s decision to establish the Specialist Chambers (SC) and the Specialist Prosecutor’s Office (SPO).Footnote 37
In fact, hybrid courts rarely have sufficient funds to adequately fulfil ambitious mandates, which creates significant vulnerability for them. Hybrid courts are funded in a wide variety of ways.Footnote 38 The Special Court for Sierra Leone (SCSL), for example, relied entirely upon voluntary contributions. A majority of the ECCC and STL budgets have come from foreign donors’ voluntary contributions, with the remainder from the respective national government. The SPSC and the Kosovo Regulation 64 Panels were partially funded by the UN mission’s budget, which meant they competed with other UN mission priorities for funding.Footnote 39 In both cases, the lack of resources was blamed for hampering the acquisition of essential equipment and the recruitment and retention of staff.Footnote 40 Nonetheless, court officials need not passively accept the resources allotted to them. The SCSL, for instance, actively solicited funding from donors such as the European Commission.Footnote 41 While resources are a major concern for hybrid courts, it is worthwhile putting these issues in perspective. Hybrid court budgets often dwarf those of domestic judicial systems. In recent years, for example, the Cambodian government has been spending about 1 per cent of the ECCC’s total budget on its entire court system.Footnote 42
How judges, prosecutors, and registrars are selected as well as how a hybrid court structures the relationship between international and national staff may influence its ability to be resilient in the face of outside pressure. Martin-Ortega and Herman illustrate these dynamics in a comparison of the ECCC and the War Crimes Chamber of the State Court of Bosnia and Herzegovina (WCC). They argue that the split structure of the ECCC, with the UN selecting and paying international staff while the Cambodian government did the same for nationals, created antagonism from the start.Footnote 43 This arrangement may have given international staff insufficient power to ensure the impartiality of proceedings.Footnote 44 By contrast, in Bosnia, the combination of nationals in leadership positions at the WCC and the planned phase-out of foreign judges and prosecutors combined to make resentment of foreigners comparatively lower. In fact, there has been significant diversity in approaching this issue. With the exception of one deputy prosecutor, the UN Secretary-General selects all of the STL’s leadership.Footnote 45 Other models put more power in the national government’s hands. In Kosovo, while the EU selects foreign staff in the SC and SPO, they operate within the Kosovar judicial system.Footnote 46 In the Central African Republic, national authorities select the Special Criminal Court’s (SCC) international staff and the SCC’s rulings are ultimately reviewable by the Central African Constitutional Court.Footnote 47
To alleviate these concerns, the conventional wisdom seems to be that maximizing the impact of hybrid courts requires the eventual withdrawal of international staff. Timing is tricky though. Concerns that the WCC would be politicized or starved for resources, for example, led the High Representative for Bosnia and Herzegovina to unilaterally extend the presence of international staff for three more years beyond the end of the original mandate at the end of 2009.Footnote 48 The exit strategy does not always work, however. In Kosovo, the SC and SPO were established because domestic courts did not take responsibility for completing cases.
In sum, hybrid courts frequently find themselves in a relatively weak position. They all face the unenviable task of maintaining the appearance, if not the reality, of resilience to outside pressure while being fundamentally reliant upon other actors to operate effectively. Hybrid courts are unlikely to ever have full autonomy because they are reliant upon national governments and the international community for resources, political support, and security, among other things. What may be key, therefore, is for the design of hybrid courts to be inclusive. The UN or influential states may help contain political interference from the national government. At the same time, engagement by civil society and other domestic interests may contain international dominance. Actors may be more likely to seek to interfere with the court if they feel that their interests were not incorporated into its structure. Yet, the architects of hybrid courts generally have not consulted with a broad range of stakeholders.Footnote 49 In the end, we are unlikely to find a one-size-fits-all solution. Hinton reminds us that the international and the local combine in unpredictable ways, which may ‘provide a spark to the imagination, opening the possibility of creative engagement and thinking in new ways’ about how everyday people can take advantage of openings created by hybrid courts.Footnote 50
It is rare for a hybrid court to be able to withstand external pressure largely unchanged, as one definition of resilience would suggest. More often, courts need to find ways of adapting to evolving domestic and/or international circumstances in an effort to build cases and complete proceedings. However, a lack of internal resilience may not necessarily be entirely bad, as it could conceivably promote more external resilience in the long run. For example, when the UN Mission in Kosovo (UNMIK) put forward its original proposal for a hybrid court in 1999, after little consultation with locals, the applicable law was rooted in existing law of the Federal Republic of Yugoslavia, with modifications to conform to international human rights law.Footnote 51 However, ethnic Albanian Kosovars objected to incorporating what they saw as an instrument of Serb oppression.Footnote 52 The crisis was eventually averted when UNMIK reformed the mandate to apply the law that existed in Kosovo prior to 22 March 1989. In the end, the episode boosted the credibility of the court in the eyes of many Kosovars and may have strengthened civil society.
3.2 Maximizing hybrid courts’ promotion of external resilience
Scholars and practitioners are keenly interested in determining how best to maximize hybrid courts’ ability to help societies address the causes of conflict and repression and promote repair. To date, however, relatively little attention has been paid to the potential relationships between transitional justice processes and resilience.Footnote 53 Yet, previous research does link goals typically associated with hybrid courts to measures of resilience. For instance, societies in which different groups share an interpretation of the past and a vision for the future appear more likely to respond effectively to new crises.Footnote 54 Moreover, societies in which cross-cutting ties are more prevalent tend to recover more quickly from natural and human-caused disasters.Footnote 55 However, a causal connection between hybrid courts and these outcomes is tenuous as best. In fact, there is a long-running controversy as to whether prosecutions soothe or exacerbate tensions.Footnote 56 Critics charge that prosecutions may generate new grievances when partisans conclude that proceedings have unfairly targeted their own, as Kosovar and Serb reactions to the various iterations of hybrid arrangements in Kosovo illustrate.Footnote 57 By contrast, others contend that trials may tarnish conflict entrepreneurs and their messages. A host of methodological and conceptual challenges have hampered the resolution of this so-called peace versus justice debate.Footnote 58
In addition, more resilient communities seem likely to possess higher levels of trust, whether interpersonal trust or trust in institutions. Cross-national studies routinely find significant distrust of government and security institutions, particularly among the poorest, most marginalized members of society.Footnote 59 Pablo de Greiff has posited an important role for transitional justice in (re)building trust in societies beset by civil war or oppression.Footnote 60 By addressing past wrongs and promoting the rule of law, hybrid courts might contribute to the development of trust in conflict-affected societies. Finally, representative, inclusive, and proactive institutions appear to promote resilience.Footnote 61 Hybrid courts do not directly shape institutions. However, they might model desirable judicial behaviour for the domestic court system. Courts that are the result of more inclusive planning might exemplify the benefits of participatory policymaking. Furthermore, external resilience might be enhanced when hybrid courts strictly adhere to fair trial standards and procedures.
The most direct way in which hybrid courts might contribute to building interpersonal trust and trust in institutions is in supporting the development of the domestic judiciary and shaping public perceptions of law and the legal system. As Pouligny puts it, ‘true resilience requires a redefining of the collective rules, some form of reacceptance of those rules (via a new social contract) and, many times, the peaceful coexistence of former antagonists’.Footnote 62 In fact, hybrid court advocates frequently tout their ability to bolster the domestic legal system. Proponents of hybrid courts laud the sense of national ownership that such an arrangement can engender, particularly compared to the ad hoc international tribunals and the ICC.Footnote 63 Judicial systems in post-authoritarian and conflict-affected societies are often deeply dysfunctional. In East Timor, for example, few lawyers were in the country following Indonesia’s withdrawal and much of the judicial infrastructure was destroyed.Footnote 64 The Cambodian judiciary is frequently condemned for widespread corruption and a lack of independence.Footnote 65 In such contexts, hybrid courts may prompt change.Footnote 66 In particular, hybrid courts may possess greater legitimacy among conflicting groups due to the presence of international staff. Hybrids also may prompt the domestic judiciary to assume responsibility for investigating past atrocities, as many hope Kosovo’s SC will.Footnote 67
Many argue that hybrid courts can promote the rule of law.Footnote 68 OHCHR actually sees the rule of law as the sine qua non of hybrid court legacy, which it defines ‘as a hybrid court’s lasting impact on bolstering the rule of law in a particular society, by conducting effective trials to contribute to ending impunity, while also strengthening domestic judicial capacity’.Footnote 69 Societies in which hybrid courts are established appear to share this expectation. In Sierra Leone, for example, the public expected this type of impact.Footnote 70 Some hope the SC will generate ‘a new impetus to push for reforms and bring an end to [Kosovo’s] political and economic stagnation’.Footnote 71 Hybrid courts might achieve this in a variety of direct and indirect ways.
One way in which hybrid courts might promote the rule of law is via a demonstration effect.Footnote 72 For example, in their proceedings, hybrid courts should ensure a fair trial for all defendants, follow acceptable prosecutorial standards, and operate with transparency and professionalism. Defendants should be detained in ways that are consistent with international standards. In addition, hybrid courts should promote equality, both in terms of the types of victims whose suffering is addressed and in personnel decisions. Finally, the OHCHR urges hybrid courts to promote broader dialogue in society about human rights issues. Staff of the SCSL frequently highlight the incorporation of the Peace Museum at the court site as one of its most important legacies.Footnote 73 Some Kosovars hope that the SC ‘could help generate sympathy for the suffering of other ethnic groups during and in the aftermath of the conflict and create space for more pluralistic narratives about victimhood …’.Footnote 74 International presence is assumed to better ensure these practices.
In fact, much attention has focused on the relationship between hybrid courts and the rule of law. There is some evidence of hybrid courts delivering on this goal. Holvoet and de Hert, for instance, praise the SCSL for ‘promoting the rule of law and in training professional and administrative staff’.Footnote 75 Part of the positive effect may come from hybrid courts’ contribution to developing domestic legal expertise. Martin-Ortega and Herman’s interviews with international and domestic staff at the WCC and ECCC revealed a broad consensus that, in both cases, ‘national staff has become more confident and able to carry out its work’ over time.Footnote 76 They further credit hybrid courts in Bosnia and Cambodia with providing opportunities for training for locals more generally.Footnote 77 Kosovo’s Regulation 64 Panels appear to have had a similar benefit.Footnote 78 Stromseth credits the SCSL with improving the witness management skills of domestic police investigators.Footnote 79 Studies do not address long-run rule of law development in these countries, though, so we lack clear evidence that hybrids have a sustained impact that might promote resilience.
Moreover, funding problems and pressure for speedy trials may thwart the realization of this goal. Referring specifically to the SPSC, Cohen asks, ‘the Special Panels were cheaper and faster, but at what cost?’.Footnote 80 Scholars and activists frequently lament the limited funding hybrid courts possess. However, not all of the training is necessarily provided by hybrids themselves. For example, the Open Society Justice Initiative and the Asian International Justice Initiative supported such efforts in Cambodia.Footnote 81 As such, hybrid courts may attract other resources that can support the development of the rule of law and, ultimately perhaps, external resilience.
Hybrids also may boost the domestic judiciary by providing leadership opportunities for nationals. This depends upon the organizational structure established within the hybrid court. For instance, the ECCC and WCC training was largely driven by demand from national staff. This may be empowering and reduce concerns that the courts are neo-colonial agents. By contrast, Stensrud finds that the dominance of foreigners in the senior leadership of the SCSL curbed its broader effect on the domestic judiciary.Footnote 82 Ultimately, the direct effect of investment in national staff depends upon whether those individuals stay in the country. Although anecdotes abound of national hybrid court staff moving on to positions internationally, no study has systematically traced their subsequent careers.
Training facilitated by hybrid courts may enhance human capital beyond the national staff. For example, hundreds of local lawyers not directly involved in the hybrid courts benefited from training organized by the ECCC and the WCC.Footnote 83 Not all hybrids do so. In East Timor, little training or mentorship was provided to the local legal community.Footnote 84 Also, locals may not necessarily view the resources and training provided by hybrids as beneficial. In Sierra Leone, the local legal community felt the SCSL did not make a great effort to engage with them and that it diverted resources that might have gone to the domestic legal system.Footnote 85 Depending on the nature of a future crisis, a more robust legal community might contribute to society’s resilience.
Furthermore, hybrid courts often directly or indirectly contribute to the development of civil society, which appears to be important in cementing hybrid courts’ long-term impact. In fact, one of the more dramatic ways that hybrid courts might promote the rule of law is by generating public demand for it.Footnote 86 Groups can raise awareness about the court’s work and the importance of rule of law reform. The East Timorese NGO Judicial System Monitoring Programme got its start monitoring the SPSC, but has continued to play a watchdog role over the domestic judiciary.Footnote 87 Some also credit the SCSL with strengthening civil society.Footnote 88
Civil society may challenge or complement courts’ narratives. In Bosnia and Cambodia, for instance, NGOs often emphasized restorative justice in contrast to the retributive justice on offer from the hybrid courts.Footnote 89 In Sierra Leone, many victims and witnesses complained that the SCSL was doing nothing to address their material needs.Footnote 90 As a result, civil society may promote the resilience of society by highlighting the importance of non-retributive justice measures. In Cambodia, the ECCC enabled victims to participate as civil parties in its proceedings, though the burden of providing lawyers for them fell upon civil society.Footnote 91 Cambodian NGOs also took upon themselves most of the outreach work that was initially neglected by the ECCC.Footnote 92 In short, hybrid courts, through both their successes and failures, may facilitate the further development of civil society, which might in turn promote resilience.
More generally, hybrids may promote public trust in political institutions.Footnote 93 As such, hybrid court investment in outreach is critical. OHCHR recommends that outreach efforts proactively engage a diversity of stakeholders, accurately spread information across the country about all facets of courts’ work, and genuinely engage in dialogue with society.Footnote 94 In practice, hybrid courts’ outreach programs have varied tremendously. In East Timor, the SPSC invested very little in such programs.Footnote 95 Many also criticize the ECCC for failing to connect with the Cambodian public.Footnote 96 By contrast, although flawed, SCSL outreach was extensive and multifaceted. Among other things, it established a radio station to disseminate information, outreach offices in every province, and distributed weekly updates around the country via mobile video units.Footnote 97 More generally, the SCSL has been credited with raising awareness of human rights.Footnote 98
Many of the broader social effects that proponents identify with hybrid courts are at least implicitly preconditioned on domestic publics paying attention. Overall, though, there is relatively little research on how mass publics have responded to hybrid courts. In some circumstances, the public may not pay attention, regardless of how robust the outreach effort. In Bosnia, for instance, the public seemed to show little interest in the WCC,Footnote 99 which some have attributed to war-fatigue.Footnote 100 Persistent rhetorical attacks against the WCC also may have undermined public opinion about the courts and judicial reform in general.Footnote 101 Evaluations of the SCSL vary widely, with some survey research finding significant majorities holding favourable views, while others find that more critical views prevail.Footnote 102 Although research from the mid-2000s found that Kosovar lawyers believed the presence of international staff would have a long-term negative effect on public perceptions of the domestic legal system,Footnote 103 no research has explored the claim. One important area for future research is to examine individual perceptions of hybrid courts over time, and to explore whether and how they contribute to longer-term psycho-social healing and trust building among victims and affected publics.
Hybrid courts can make several organizational choices to maximize their impact on societies. For example, charging someone on the hybrid court’s staff with planning to maximize its legacy may help to promote lasting change. In fact, OHCHR recommends that legacy issues ‘should be explicitly mandated and receive support from the core budget’.Footnote 104 This is, in fact, what the SCSL did when it appointed a legacy officer in late 2005.Footnote 105 The pressure to complete the Court’s proceedings, however, overshadowed legacy efforts.Footnote 106 In addition, there is debate as to whether incorporating international expertise in the capital or throughout the country produces more positive results.Footnote 107 Centralization simplifies administration and may produce measurable results more rapidly. However, decentralization may result in a broader impact on the legal system. To date all hybrid courts except Kosovo’s Regulation 64 Panels, have been centralized, so this conclusion is speculative.
Moreover, despite the appeal of hybrids being closer to affected publics, the actual location of the court within the country matters. When the ECCC was established in suburban Phnom Penh, for example, it was out of the reach of many Cambodians until the court organized and publicized a bus service to transport people to the venue.Footnote 108 Following the initiative, an average of over 300 people per day attended the remainder of Case 001, more than 23,000 people in total.Footnote 109 More troubling, in Bosnia, Serb political leaders viewed the WCC as unfairly targeting them, particularly in light of the fact that the court occupied a facility in which Serbs were detained during the war.Footnote 110 Thus, the physical location shapes participation in and perceptions of a hybrid court.
In conclusion, hybrid courts may maximize their impact by being more self-aware of the legacy they are attempting to leave and by devising what Stromseth calls a domestic impact strategy to realize these goals.Footnote 111 The first step, she argues, is to better understand domestic circumstances, in other words to assess the domestic judicial system as well as the needs and demands of the population. Second, in its outreach and in its behaviour, the court must convey the message that human rights violations will no longer be tolerated, that those who commit them will be held accountable, and that the processes through which this occurs will be fair.
All of these claims deserve greater empirical scrutiny. The recommendations are logical and they make intuitive sense. Nonetheless, much of the research that addresses hybrid courts’ impact in the aggregate, whether on the domestic judiciary, civil society, or the extent the rule of law exists domestically, has been conducted while the court is still operating or shortly after its conclusion. We know little about what, if any, long-term effects hybrid courts might have. Further, it is unclear whether such effects make society more resilient to future shocks. We know even less about how hybrid courts might affect the resilience of victims and other individuals. Hybrid courts rarely change the material circumstances of victims and marginalized populations, so they seem unlikely to measurably affect the resilience of these individuals. Furthermore, hybrid courts seem unlikely to have much of an effect on their own. We need to know more about how hybrid courts interact with other domestic and international factors to maximize their impact.
4. Conclusion
What do we gain from examining hybrid courts within a resilience framework? As Cohen puts it, it is ‘an open question if any courts can successfully promote reconciliation and stability’.Footnote 112 This sentiment echoes broader concerns about attempts to evaluate the impact of transitional justice processes, where a range of conceptual and methodological challenges have bedevilled progress.Footnote 113 We need to know more about how courts might affect such difficult to measure outcomes as democracy, trust, and reconciliation. If one accepts the premise that hybrid courts have the potential to help repair relationships and promote the rule of law, the development literature suggests that these societies should more easily rebound from natural disasters and economic and political crises. Thus, a potential value-added of adopting resilience language is to provide a reasonable set of hypotheses to test whether hybrid courts actually help individuals and societies respond to future shocks. This is worth exploring empirically.
At the same time, one should be cautious about rushing to place too much credit or blame with hybrid courts. OHCHR puts things in perspective in warning that ‘too much emphasis on legacy may give rise to unrealistic expectations’.Footnote 114 Hybrid courts are relatively weak, temporary institutions operating within specific global and local contexts. Regardless of how exemplary the hybrid court is, important domestic and international actors need to see value in investing in sustaining efforts such as to strengthen the domestic judiciary and the rule of law:
The qualities that make up resilience are deeply embedded, not virtues that can be quickly transferred in a workshop. They involve dense patterns of trust networks, hybrid coalitions forged across a wide range of actors, shared narratives, common interests, multiple lines of communication, good leadership, and a commitment by local leaders to take risks for peace – whether this includes negotiating with or confronting potential armed spoilers.Footnote 115
At best, hybrids may be jointly sufficient to promote resilience.
Even if the empirical case is weak, perhaps adopting resilience language is normatively good. While causal claims may be difficult to make, given hybrid courts’ frequent funding challenges, adopting resilience language might be useful in terms of attracting funding by using a popular development buzzword. More generally, for some, the concept promises the type of emancipatory justice that some have criticized transitional justice processes for failing to deliver.Footnote 116 Some postmodern scholars argue that thinking in terms of resilience helps humanity govern a world of growing complexity.Footnote 117 For them, resilience thinking is appealing because it implies an emancipatory governance of ‘everyday democracy’, which ‘is not about governing from the top-down or the bottom-up but about social resilience, understood as the existing embedded and relational capacities of ordinary people’.Footnote 118 It has become conventional wisdom that transitional justice processes are often externally-driven, typically Western, one-size-fits-all solutions that do not account for the unique attributes of specific conflict-affected societies. A body that owes much to foreigners, like a hybrid court, may be particularly prone to delivering justice that is tone deaf to local demands. However, if local communities are meaningfully engaged in the design and operation of hybrid courts, and are able to use the court’s existence to better organize and advance their own interests, as several anecdotes indicate, this may be reflected in a more resilient society. In short, resilience thinking may provide a vision of empowerment and autonomy for victims and affected communities.
In the end, though, I am unconvinced that adopting resilience language helps us design and evaluate hybrid courts much better than in the past. More troubling, critics charge that resilience language undercuts the potential for transformative justice by advancing the global neoliberal agenda.Footnote 119 Because promoting resilience implies reaction to unforeseeable crises for which one cannot prepare, it can justify a position that everyone is on his or her own. As some critics argue, a:
resilient subject is a subject which must permanently struggle to accommodate itself to the world, and not a subject, which can conceive of changing the world, its structure and conditions of possibility. However, it is a subject which accepts the dangerousness of the world it lives in as a condition for partaking of that world and which accepts the necessity of the injunction to change itself in correspondence with threats now presupposed as endemic.Footnote 120
Such a view can justify non-intervention by the state.Footnote 121 As I have shown, when hybrid courts meaningfully and respectfully engage the societies for which they were created, they may provide at least short-term impetus to civil society, judicial capacity, and trust. However, in the long run, victims and marginalized communities may or may not be able to empower themselves if left to their own devices. Resilience language seems likely to generate expectations that hybrid courts will be unable to fulfil in the absence of real political and economic reform. At worst, resilience rhetoric provides cover for the state to abandon a transformation agenda.
