While established in many cases as a second choice over more thoroughly international tribunals, hybrid courts have developed an independent institutional life with its own promises and perils.Footnote 1 One hope that advocates have for these tribunals is that they may aid transitional justice processes by helping secure a stronger sense of ownership over justice processes and their findings when compared to more overtly international courts like the International Criminal Court (ICC).Footnote 2 By combining domestic laws, procedures, and personnel with their international counterparts, hybrid courts have the potential to make a significant and lasting contribution to transitional justice and provide a model for future domestic justice institutions.Footnote 3 As experts contemplate a new generation of hybrid tribunals, a clear-eyed understanding of the challenges such tribunals face as well as the unique potential they possess are essential moving forward.Footnote 4 This article is intended to contribute to this literature by highlighting a unique and powerful feature of the hybrid courts – one that has been largely under-theorized in the scholarship surrounding them.
This article will argue that one of the significant advantages of the more ‘localized’ justice found in the hybrid courts is that it makes these institutions better able to frame justice discourses in a fashion that will resonate with the local population. As a result, their findings are more likely to be accepted by the public and may then play a significant role in shaping the ensuing political narratives surrounding a conflict. This, in turn, can allow the tribunals to affect the broader politics of a conflict and facilitate a transition to a democratic stability.Footnote 5 Beyond deterring future criminality, this political function is one of the most important contributions international courts can make to human progress and the active participation of locals in the tribunals creates a potential for greater impact than more traditional or domestic international courts.
Because of the unique context in which they operate, we must understand international justice in relation to local identity politics and recognize that these politics have a greater influence on the reception of institutions than with most traditional forms of criminal justice. Both in the courtroom itself and in the broader public sphere, various actors seek to either harness or neutralize identity politics to either discredit the tribunal or bolster it in the broader society. Much of this revolves around the asserted identity of those who represent the tribunal at various levels – they are portrayed either as outsiders or as insiders and the success or failure of these different portrayals can have a dramatic influence on their legitimacy as perceived by local stakeholders. Who dispenses justice, that is, who is perceived as casting judgment upon a defendant, is in many ways as important as the character of justice that is dispensed by a court, at least from a transitional justice perspective.
If the public accepts the right of the court to operate, that is, if they ‘own’ it, it will have more public efficacy. Such ownership over a criminal justice institution and its findings is at least partially dependent upon one’s perceived relation to those who set it up and run it. As Raub puts it:
Citizens of the affected country should feel some participatory connection to the trials if those trials are to further the oft-declared goals of international criminal justice – promoting reconciliation, developing a culture of accountability, and creating respect for judicial institutions in a post-conflict society.Footnote 6
Lacking such a connection, the ability of criminal tribunals to substantially contribute to a democratic transition is severely curtailed and thus all supporters of international justice have an interest in promoting local participation and ownership.Footnote 7 Without ownership, these tribunals are unlikely to be accepted as legitimate or even relevant to local stakeholders and if a tribunal is perceived as an external imposition, it is far less likely to be taken seriously by the audience that matters most.
This sense of ownership does not simply ‘happen’ – it is the product of a complex and often combative social process wherein different groups seek to either undermine or bolster ownership claims. It is in this process where hybrid tribunals can show their greatest effectiveness. By exploiting structural elements of hybrid tribunals for advantages in the symbolic politics of international justice, they can be an effective resource for post-conflict justice. But in order to do this, the tribunals must be developed with an eye towards the sociological dynamics underlying criminal justice. Hybrid institutions combine domestic and international dimensions in a way that can allow for locals to feel a sense of connection to the institution and the justice it dispenses while at the same time providing checks on local power struggles that could undermine its operational legitimacy or turn it into a tool of political revenge. If my analysis is correct, hybrid tribunals have a strong advantage over other traditional institutions that future hybrids could exploit with relative ease to increase their legitimacy and their impact.
Before examining the contribution of hybrid tribunals to the politics of legitimacy, I will first lay out some of the sociological elements that can shape the ownership of international justice institutions. Most analyses of the contributions of hybrid tribunals have largely focused on their concrete contributions (such as training domestic personnel and ‘modeling’ the rule of law for a domestic audienceFootnote 8) rather than symbolic ones. Most discussions of ‘ownership’, on the other hand, overlooked the broader sociological dynamics that shape ownership and have treated ownership as a clearly understood phenomenon.Footnote 9 Relying on Goffman’s notion of a frame,Footnote 10 I will attempt to expand these debates and argue that approaches to international justice are shaped by a unique set of frames that are in turn shaped by underlying identity conflicts. Different groups seek to use framing techniques to legitimize or de-legitimize international justice institutions for their own purposes in a series of framing contests. From there, I will then turn to the unique contributions that hybrid tribunals can make to these framing contests and argue that, on account of their domestic component, hybrid tribunals are better suited to engaging in them and thereby promoting their own legitimacy. I will conclude with some recommendations for concrete ways that hybrid courts can improve their ability to shape their legitimacy among the local population.
1. Framing, framing contests and legitimacy
Tyler,Footnote 11 most notably, has used a variety of empirical methods to examine the relationship between criminal justice institutions and public behaviour. To be effective, he argues, criminal justice institutions must be perceived as legitimate by the public. He adds that:
Citizens who accept the legitimacy of the legal system and its officials are expected to comply with their dictates even when the dictates conflict with their self-interest. Legitimacy is regarded as a reservoir of loyalty on which leader can draw, giving them the discretionary authority to govern effectively.Footnote 12
The empirical sources of this reservoir can be examined by psychologists and by the empirical social sciences, determining which features of institutions are likely to bolster or weaken such legitimacy. Tyler then offers criteria that can help determine whether legal institutions will be accepted as legitimate – institutions that are experienced as procedurally just by actors are more likely to be accepted as legitimate whereas those that are not, will not.
While Tyler is clearly correct that positive personal experiences with legal institutions help generate compliance, his analysis is primarily focused on individual encounters with representative of criminal justice institutions not with broader public perceptions of them. He does not study the impact of mass media or other intermediaries on faith in political authorities in relation to public attitudes towards more remote institutions. Framing theory as developed by Goffman provides a helpful addendum to Tyler’s analysis and helps us to apply his thought to more remote bodies.Footnote 13 Media frames, ‘provide background understanding for events that incorporate the will, aim, and controlling effort of an intelligence, a live agency, the chief one being the human being’.Footnote 14
[T]o frame is to select some aspects of a perceived reality and make them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation for the item described.Footnote 15
Frames stand as ‘a central organizing idea or story line that provides meaning to an unfolding strip of events … The frame suggests what the controversy is about, the essence of the issue’.Footnote 16 Without such frames, we are unable to adequately process diverse information and place them into a coherent whole, much less develop opinions about issues. Once established, such frames can then serve as the basis for broader political action – what Benford and Snow describe as ‘collective action frames’.Footnote 17
On many issues, particularly those garnering intense public interest, framing is not a politically neutral activity, nor does it take place in an ideological vacuum. Issues are often framed in the context of a broad, contentious tug-of-war between different groups with competing ideologies and interests.Footnote 18 Participants in such ‘frame contests’ seek to articulate a frame that suits their broader political agenda and will ultimately dominate public discourse about the issue.Footnote 19 In this political context, framing is best conceived as ‘an active processual phenomenon that implies agency and contention at the level of reality construction’.Footnote 20 Through the media, various stakeholders seek to shape public attitudes on a wide variety of subjects by placing them within broad political frames that resonate with the public’s self-understanding. These frames then serve as the basis for political action as the ‘initial conceptualization of injustice frames as a mode of interpretation-prefatory to collective noncompliance, protest, and/or rebellion-generated and adopted by those who come to define the actions of an authority as unjust’.Footnote 21 Such framing contests are unique to particular social and historical contexts and success in these contexts is essential to ensuring political dominance.
2. Frames in the context of international justice
While citizens may encounter local justice institutions in a variety of both mundane and dramatic ways, their experiences with international courts are usually much further removed. Often located far away in The Hague, Arusha, or Dili, and relying on a specialized legal discourse that is impenetrable to all but a few experts, international tribunals usually require intermediaries to make their activities meaningful to the public. Most people access international criminal justice procedures entirely through mass media such as television, radio, and the internet (though sometimes it is through more focused institutions such as a tribunal’s outreach office or international NGOs).Footnote 22 This makes these tribunals uniquely susceptible to frames that serve particular political agendas as experts spin the tribunals in a way that suits their ideology or agenda when presenting them to the public.Footnote 23
Along with the media, the courtroom itself can also be a site for contested framings of international justice. In a long tradition, dating back at least to Socrates’ Apology, defendants and their attorneys have sought to disrupt proceedings and engage in various forms of political theatre in order to undermine the credibility of the court and force judges to react in damaging ways for the tribunal.Footnote 24
Such defendants:
seek to derail the proceedings, hoping for a negotiated solution (e.g., amnesty) outside the courtroom; to hijack the televised proceedings, hoping to transform themselves through political speeches into martyrs in the eyes of their followers; and to discredit the tribunal by provoking the judges into inappropriately harsh responses which will make the process appear unfair.Footnote 25
Slobodan Praljak’s courtroom suicide at the ICTY, after denying the charges against him, stands perhaps as the most dramatic version of this but many others occur in courts routinely. As Glasius and Meijers put it:
While the court cases are ostensibly only concerned with establishing the legal guilt or innocence of the accused, the prosecution and the defence are simultaneously constructing narratives about the political legitimacy of the accused as an actor in a past or ongoing conflict, as well as the political legitimacy of the court itself as another such actor. Hence, the trial can be seen as a discursive battle for legitimacy.Footnote 26
The courtroom itself, already broadly constructed as a form of theatre has been often used as a place for framing narratives around the conflicts in different ways by different parties.Footnote 27
The frames that shape the discourses of international justice are often rooted in the larger identity conflicts in a region. Collective identities, be they ethnic, national, or tribal are often the lenses through which observers frame the activities of the tribunals.Footnote 28 Thus, ‘Serbs’ versus ‘non-Serbs’ in the former Yugoslavia, ‘Hutu’ versus ‘Tutsi’ in Rwanda, or ‘Catholic/Timorese’ versus ‘Muslim/Indonesian’ in East Timor are the ‘us’ and the ‘them’ that actors use to calibrate their reactions to the tribunals’ activities. As Calhoun describes these conflicts:
The pursuits labeled ‘identity politics’ are collective, not merely individual, and public, not only private. They are struggles, not merely groupings; power partially determines outcomes and power relations are changed by the struggles. The involve seeking recognition, legitimacy (and sometimes power), not only expression or autonomy; other people, groups and organizations (including states) are called upon to respond.Footnote 29
A tribunal’s rulings can be granted legitimacy by a public or be widely discredited as a result of how they handle framing issues, independent of the merits of the cases at trial. Therefore, understanding the identity politics that are used to frame international justice is an essential part of understanding the success or failure of international tribunals.
Identity politics are not unique to international justice of course, but they are particularly salient in this domain for a host of reasons. Most westerners do not believe that their domestic criminal justice system is inherently biased against them – although there is a clear and well-founded belief among racial minorities that they are unfairly targeted.Footnote 30 While critical scholars have done a great deal to expose the biases in domestic legal institutions, these discourses are largely marginal to public perceptions of justice in the west.Footnote 31 International justice is different because many situations where international courts are called upon to adjudicate are conflicts between at least two groups with highly salient identities. Whether it is the genocide of Tutsis by Hutus in Rwanda, the ethnic cleansing wars that characterized the breakup of the former Federal Republic of Yugoslavia, or the attacks against East Timorese by their Indonesian colonizers in the wake of East Timor’s UN sponsored independence referendum, conflicts between ethnic, national, or tribal groups stand at the core of the violence. In almost every international tribunal there are strong ethnic, national, or racial dimensions that are only marginal to most domestic criminal justice systems.
While many of the preceding conflicts were based on identity issues, the identity politics that shape the framing of these tribunals need not be the same as those that preceded it. While it is certainly true that in many contexts, a great deal of the violence that has led to the creation of international tribunals can be described as ‘ethnic conflict’Footnote 32 clearly not all of them are best understood this way. The wars in the former Yugoslavia and Rwanda were clearly ethnic conflicts, revolving around hatreds and contradictory moral and territorial claims between the different peoples of these regions. While other conflicts that served as sources for tribunals, namely the brutalization of East Timor by Indonesia and Sierra Leone by the Revolutionary United Front (RUF), and the tyranny of the Cambodian people under the Khmer Rouge had ethnic and racial elements to them, they were not classical ethnic conflicts. Equally important, international justice inevitably involves outsiders coming into a society and judging the acts of some of its past or current representatives. Regardless of the underlying conflict, war crimes trials almost always involve some type of identity issues, either intra-nationally or internationally.
Identity issues are also important in the context of international justice because, when placed before a criminal tribunal, the leaders of the different conflicts often stand as proxies for the people they purport to represent. When individual defendants in an international trial committed their alleged atrocities, they often claim that they were acting in their capacity as political leaders, not as individuals. While none of the international tribunals recognize head of state immunity, raison d’état, or similar defences in trials, this legal defence is different from the symbolic position the defendant puts herself in while framing her conduct at trial.Footnote 33 If such an attempt is successful, she is identified with ‘her people’ and therefore her prosecution is in many ways the prosecution of the collectivity. As an article in the New York Times, aptly titled ‘Milosevic Is Accused, but All of Serbia Is on Trial’, put it, ‘A war crimes trial in The Hague is far more likely to explain how the Serbs themselves sustained Mr. Milosevic’, than would an ordinary trial.Footnote 34 Outsiders who purport to cast judgment on an individual defendant will often be perceived as casting judgment on the group of people identified with her. Thus, rather than framing the tribunal as a tool of conflict between groups, such frames see the tribunal as a tool of outsiders who claim a right to cast judgment on a group through the prosecution of their (often beloved) leaders.
This approach to thinking about international justice as bound up with issues of identity is closely aligned with Schmit’s and Kircheimer’s analysis of the primary function of ‘the political’: distinguishing friends from enemies.Footnote 35 As Nouwen and Werner (developing Schmit’s work) have suggested, the legitimacy of international tribunals is often used by different groups to legitimize their worldview and to demonize a rival. This requires cultivating a unique form of legitimacy for the tribunal. As they put it:
The point of a political trial is precisely to use the integrity of the legal system for a political fight. Courts, unlike many alternative instruments to fight the enemy, provide a specific form of legitimation for the struggle. The more courts are perceived as being independent and impartial, the greater the legitimacy bonus for the political regime.Footnote 36
According to Nouwen and Werner, this presents a dilemma for the ICC as:
The more successfully it portrays itself as neutral, universal, and above politics, the more attractive it will become as an instrument for the labelling and neutralization of enemies of a particular political group. Similarly, precisely because the ICC serves universal values and presents itself as non-political it becomes an attractive venue for political trials.Footnote 37
While this tension certainly presents a dilemma for international justice institutions, it also provides an opportunity for international courts to act in the interests of a different and arguably more noble set of political goals – those of transitional justice. Because they are seen as being ‘above politics’ however the political is conceived they can help a society transition to democratic stability – but only if they zealously promote this image of integrity in the public sphere.
2.1 Identity politics frames: The impartial reasoner and the illegitimate outsider
International justice is framed by various groups in the public sphere in order to serve their ideological interests, many of which revolve around the society’s underlying identity conflicts. Therefore, understanding the dynamics of these identity-based frames is essential to understanding the potential of hybrid tribunals as tools of transitional justice. While it is in many ways an oversimplification, different groups tend to examine the institutions according to two overarching frames: the impartial reasoner and the illegitimate outsider. In this section, I will briefly examine these in order to discuss the significance of the hybrid tribunals in the remainder of the article.
Despite the ever-present threat of being sucked into a politics of identity, international criminal tribunals usually seek to frame their operations as those of an impartial reasoner. Such a frame seeks to deny the relevance of identity in how justice is handed down and instead attempts to portray the tribunal’s actions as the objective evaluation of the evidence against the defendant carried out by an agent devoid of bias. As Young describes this approach:
The impartial reasoner is detached: reason abstracts from the particular experiences and histories that constitute a situation. The impartial reasoner must also be dispassionate, abstracting from feelings, desires, interests and commitments that he or she may have regarding the situation, or that others may have. The impartial reasoner is, finally, a universal reasoner. The moral point of view abstracts from the polarity of affiliation, of social or group perspective, that constitutes concrete subjects.Footnote 38
Under this model, international justice consists in the impartial application of an objective set of norms and procedures aimed at getting to ‘the truth’ about a particular issue and assigning appropriate blame independently of the aims and interests of any particular group involved in this conflict. As Steinitz (drawing upon MeadFootnote 39) puts it, judges as impartial reasoners:
[A]ttempt to construct the authoritative narrative of reality and, in the process, attempt to fashion themselves as the voice of an abstract community—the international community—i.e. the embodiment of a universal Generalized Other whose directives should, as such, be viewed, internalized, and acted upon as authoritative proclamations of a universal morality.Footnote 40
What marks this framing position out is its refusal to participate in framing contests built around identity politics and to steadfastly adhere to a notion of legitimacy that is divorced from identity.
It is important to recognize that the objectivity embodied in such a perspective must be carefully cultivated by all the relevant actors – often in the face of those who aggressively challenge it. The court’s agents must perform the objectivity of the institution itself.Footnote 41 As Gamson puts it, ‘From the standpoint of those who wish to control or discourage the development of injustice frames, symbolic strategies should emphasize abstract targets that render human agency as invisible as possible.’Footnote 42 In word and in deed, it is essential that objectivity be displayed by the court. Voices must be ‘official’ and respectable, as must dress and demeanour, avoiding emotional or personalized discourse that might make it seem as though the tribunal was subject to the idiosyncratic whims of its personnel. Regardless of whether or not the procedures or outcomes of a tribunal are truly impartial or meet the standards of procedural or substantive justice, the impartial reasoner frame seeks to project a ‘perspective-less perspective’ of objectivity and impartiality that showcases the legitimacy of the tribunal itself. Many international justice professionals who work in the courtroom are operating in this frame, regardless of its effectiveness beyond the world of international lawyers or elite (mostly) western stakeholders.
While the impartial reasoner stands at the centre of the western understanding of criminal justice, it can be seen to be problematic outside of this tradition.Footnote 43 To many people outside of Western Europe as well as feminist and other critics within the western ideological sphere, such a conception of justice, particularly when articulated by white, male Europeans and Americans is seen as reflecting colonialist and masculinist ideologies where vicious economic and political agendas often came cloaked in the rhetoric of impartiality.Footnote 44 Regardless of whether or not these attempts to describe international courts as ‘white man’s justice’ are merely cynical attempts to manipulate a public or express a sincerely held radical perspective, the fact that they find fertile ground in a credulous audience speaks well both to the genuine hatred of colonialism on one hand and the public’s willingness to see international courts as representing a more partial form of justice.
In his analysis of the Special Court for Sierra Leone (SCSL), Kelsall (relying on Foucault) provides an insightful analysis of the rhetorical strategies tribunals use to portray themselves as impartial observers.Footnote 45 Examining the discourse of the courtroom, Kelsall suggests that the discursive limitations in the institution are designed to portray the courtroom as an apolitical space in an effort to ‘delegitimise leaders of violent movements by construing their acts as “criminal” rather than “political”’.Footnote 46 The court remains a carefully circumscribed space where discourse is regulated to maximize its role as an impartial observer. Towards this end:
language [in the court] has been used to exercise power in at least two distinct ways. To begin with, it has been used to redefine history, carving a set of criminal acts from the continuous flow of political events. Second, it has been used to set boundaries to the types of statement that are permissible or sayable in the courtroom.Footnote 47
It is telling that in Kelsall’s analysis, even the prosecutor’s rhetorical flourishes were constrained by a bench eager to show its ‘determination to resist any move to allow politics to intrude into the domain of the impartial administration of justice’.Footnote 48
Those who seek to undermine international courts on the other hand can seek to frame the tribunals as illegitimate outsiders – they can try to ‘other’ the tribunals. According to this framing, the court is an entirely inappropriate and illegitimate institution for prosecuting crimes. In its most extreme variants, criminal justice institutions are portrayed as serving as a tool of mere ethnic vengeance or as a servant of a foreign agents who are seeking to advance their own agenda. Justice institutions represent the views and interests of ‘others’ who have no real understanding of a conflict and have no right to cast judgment on those involved in it. This frame is used by different actors involved with the tribunals (often from the dock) to legitimize or delegitimize their operations.
In this approach, the impartial reasoner frame used by the tribunal’s supporters is portrayed as a thin cover for a darker, covert agenda. Critics can simultaneously portray their own group as blameless victims in a conflict and argue that outsiders have fabricated charges against a defendant and her people to discredit them. The impartiality and objectivity of the tribunal is portrayed as little more than a cynical ploy to con a gullible world. Through its cunning rhetoric and bluster, the ‘other’ is attempting to vilify the group through bogus criminal charges and the tribunal is either a willing accomplice in this or a ‘useful idiot’, unwittingly doing the work of the enemy. Whatever the self-understanding of the judges, prosecutors, and others supporting the tribunal’s work, those who support or participate in the trial are deeply mistaken about what is happening at the ICC, the ICTY, or the SCSL. At best, the supporters of these institutions are naively using these justice institutions in the service of others. At worst they are cynically deploying the rhetoric of criminal justice for their own group’s agenda against a hated enemy. For this frame, the politics of justice cannot be separate from the politics of identity – at least in their own case.
Such frames can be seen clearly in the viewpoints of many Serbs regarding the proceedings before the ICTY. Since its inception in 1993, the court has been seen by many Serbs as an effort to humiliate and punish their members by a biased international community and a coterie of complicit regional enemies (Bosnian Muslims, Croats, Albanians). As one Serbian writer put it: ‘In The Hague, all are considered innocent until proven Serb.’Footnote 49 ‘Particularly in Belgrade, there was a perception from the outset that the ICTY was anti-Serb … Claims of prosecutorial impartiality, familiar in a domestic context were not persuasive to those who were already convinced that the Tribunal was biased.’Footnote 50
Milosevic and his supporters in the Serbian public, continually portrayed the ICTY as a Kangaroo court on an anti-Serb vendetta, ignoring the fact that almost every account of the wars in the former Yugoslavia (particularly in Bosnia) saw the war as primarily a Serb-backed race war. His opening statement at the tribunal was a declaration regarding the illegitimacy of the court itself, ‘I consider this tribunal a false tribunal and the indictments false indictments. It is illegal, being not appointed by the UN general assembly. So I have no need to appoint counsel to an illegal organ.’ During the proceedings, Milosevic continually questioned the legitimacy of the tribunal through deed and word and simultaneously used it as a platform for highlighting what he saw as its biases against Serbs and in favour of NATO and Serbia’s regional enemies. At least in Serbia, this framing campaign was highly effective in swaying public opinion against the tribunal and in his favour.Footnote 51 While identity politics are not the only way to delegitimize a tribunal, in places where identity issues are highly salient, they are likely to find a receptive audience.
3. Hybrid tribunals and the identity politics of international justice
The hybrid tribunals are a unique place for understanding the framing process described in the previous sections of this article. The ability of international courts to contribute to transitional justice depends on their ability to effectively defend their legitimacy in the face of attempts to portray them as illegitimate outsiders – a battle for which hybrid tribunals are particularly well suited. Though these courts were each created under unique circumstances – some (such as the Special Panel for Serious Crimes, Dili) were created as part of a UN transitional authority, others (such as the Extraordinary Chambers in the Courts of Cambodia) were created in agreement with international powers and the UN – they nonetheless share a common feature: each tribunal combines, in some fashion, an international and a domestic presence. For example, each tribunal splits the composition of their judicial bench between local judges and international judges (though each does this in different numbers). They combine domestic and international prosecutors, defence attorneys, and though most of these tribunals rely heavily on the expertise provided by international personnel, they necessarily include a significant domestic component. On the one hand, the international presence on these tribunals allows the international community to ‘keep tabs’ on the institution, ensuring that it is meeting accepted procedural standards. On the other hand, ensuring a domestic presence on the court allows the tribunals to remain squarely in the domain of the domestic legal order to which they (at least partially) remain beholden. The international component ensures accountability, the domestic component ties it to the community.
Beyond the composition of the chambers themselves, there are many other means, both symbolic and real, by which these tribunals may seek to reinforce their links to their domestic constituencies. The tribunals are almost all located in the country where the conflict took place, allowing the public to tour the facilities and observe proceedings, also easing access to evidence and to witnesses.Footnote 52 Further they are usually situated within the existing legal architecture of the home state – though they are often independent from the broader court system. For example, the ECCC was created through agreements between the government of Cambodia and the UN but was only established in 2001 by the passage of The Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea by the Cambodian National Assembly. They are designed to be, to a certain extent, integrated with the local government and the local population, while simultaneously being removed enough from these in order to maintain their impartiality. More symbolically, hybrid tribunals often use indigenous languages as the standard language of the court, even if they are not spoken by some of the international personnel. As Aptel points out, the languages used in the tribunals’ proceedings can be of interest as a ‘key marker of identity’.Footnote 53 On a variety of levels, the hybrid courts seek to situate themselves with local political, legal, and symbolic system.
The acknowledgement that identities matter in constructing international criminal justice institutions because they help bolster their legitimacy in framing contests is the primary theoretical contribution that hybrid tribunals can make to international criminal justice. In the next part of the article, I will go into some detail regarding various features of the hybrid courts that equip them for these framing contests providing different historical examples, though focusing largely on the SCSL. I will show how the embeddedness of the hybrid courts can help them to frame its operations in a way that could more easily be accepted as legitimate by local stakeholders of all sides.
3.1 Personnel
The fact that local populations are central to the operations of the hybrid tribunals does not necessarily help them escape hostile othering frames. If local populations are not included in thoughtful ways, the legitimacy of these tribunals will easily be undermined in the eyes of the public. Precisely because many of these communities have been fractured by ethnic conflict, it is important that members of all groups participate in the procedures at as many levels as possible. The participation of only ‘one side’ of an ethnic conflict in a hybrid tribunal makes the institution more vulnerable to the othering procedures – partisans can portray the tribunal as a tool of legalized vengeance. Hybrid tribunals have an inherent advantage in this because they have been constructed to be inclusive of local populations, laws, and traditions.
To address this concern, hybrid tribunals must not only include local actors, but they must also be sensitive to the representation of members of all sides of a conflict in their staffing and operations. Identifiable members of each ethnic group must be involved with the tribunals’ operations while languages and practices of different sides must both be respected and utilized in procedures. As Esman observes:
In ethnically divided societies, where ethnic identity competes with and even supersedes allegiance to the state, where ethnic identity has been mobilized for political action, and ethnic discrimination can become a highly charged political issue, the legitimacy of government is conditioned by evidence that … fellow ethnics are visible among wielders of authority at the political levels of government and in the state bureaucracies.Footnote 54
The fact that these tribunals have opened up the possibility of including personnel determined in part by their identity makes them particularly well-positioned to rethink the way that different groups are represented in the constitution of the body. A court comprised of members of groups who may otherwise fear that the tribunal is a judgmental outsider is far more likely to be accepted as legitimate – or at a minimum will be harder to frame negatively.Footnote 55
Policies for hybrid tribunals, therefore, must involve the training of criminal justice and legal professionals from all sides of a conflict. Seeing representatives on all sides of a conflict as a part of the staff of a well-ordered tribunal is one of the most effective ways to inoculate the hybrid tribunals from toxic identity politics. As Hobbs puts it:
Representation can be defined broadly as meaning “the making present in some sense of something which is nevertheless not present literally or in fact”. More specifically, it can be divided between the concepts of “acting for” and “standing for”. The principle of fair reflection does not require a judge to act for any interest.Footnote 56
The mere presence of local actors on all levels of an institution can bolster its legitimacy in the public eye, independently of whether they support the interests of a particular group. While these people must be seen to represent the group, they must nonetheless represent the norms of impartial justice and the rule of law to effectively do their job. ‘The issue here is not to redefine “justice” – but rather to contend that post-atrocity populations’ perceptions of justice mechanisms are important.’Footnote 57 That is, they must embrace the identity of the tribunal as closer to an impartial reasoner and not as a partisan or illegitimate outsider. Nonetheless their presence in the proceedings stands as a powerful symbolic rebuke of attempts to frame the tribunals as coming from the outside.
Some of these representational dynamics played out at the SCSL. With a trial chamber composed of three judges, including one appointed by the government of Sierra Leone, and a five-person appellate court composed of three international and one Sierra Leonean judge, the court thoroughly integrated international and domestic voices on the tribunal’s bench. Equally important, even among the international contingent of judges, there were a significant number of African representatives. In total, eight of the 13 judges who served on the tribunal were African. This meant that the tribunal had a bench that looked a great deal like the people who were in the defendants’ chairs as well as their supporters and victims.
On the other hand, the composition of the prosecutor’s office was somewhat more problematic from the perspective of identity politics.Footnote 58 The statute called for a Sierra Leonean Deputy Prosecutor and ‘such other Sierra Leonean and international staff as may be required’, but Sierra Leone was underrepresented overall in the Prosecutor’s office.Footnote 59 All the Chief Prosecutors who served at the SCSL (including in its residual form) were white westerners. In part, this was because of the specialized knowledge required to prosecute these cases and in part this is because of the time pressures placed on the tribunal. Only one Deputy Prosecutor, Joseph Kamara, was Sierra Leonean. This situation left the tribunal open to hostile frames and in a 2011 report, the International Center for Transitional Justice suggested that the heavy American presence at the opening of the tribunal left it vulnerable to charges that the tribunal was subject to undue American influence.Footnote 60 Having outsiders charge and prosecute Sierra Leoneans did not bolster supporters’ claims that the trial process was legitimate and objective.
During the trial itself, the defendants took advantage of these symbolic vulnerabilities. As Glasius and Meijers point out in their study of the Taylor case, there were numerous attacks on the legitimacy of the tribunal in the courtroom, many of which sought to frame the tribunal as an illegitimate outsider.Footnote 61 The defence sought to portray the prosecution as racist (‘Like an illegal immigrant, refugee or worse, and for those of an historical mind, in reverse, he was taken in chains from the shores of Africa to Holland, thousands of miles away. The country of one of the colonizers of the black race for centuries. A historically familiar journey for some.’) and depicted the tribunal itself as an instrument of US foreign policy (‘The tribunals which are but an instrument of diplomacy in the hands of powerful states are, in fact, not administering law at all but, instead, providing spurious cover for their paymasters, thereby prostituting the legal process.’). Similarly, in the public sphere, Taylor’s supporters charged that the proceedings were, ‘Not a trial at all, but the abuse of legal forms to achieve a predetermined end: The conviction of the accused and his incarceration for a long time.’ In short, Taylor’s defenders sought to portray the tribunal and its prosecutors as interlopers, illegitimate outsiders intruding on African affairs with a neo-colonialist agenda. It is telling that the most damning charges were aimed at the Prosecutor’s Office – where the Sierra Leonean and African presence was much lower and thus more susceptible to hostile frames.
3.2 Witnesses
Including individuals who can represent key stakeholders at trial is a significant way that tribunals can bolster their legitimacy. Beyond bare staffing decisions, however, there is an array of additional ways that an international tribunal can involve local representatives in order to provide itself with a more robust ‘domestic face’ and bolster its public legitimacy. Domestic actors can be inserted throughout the trial process in a way that can promote ownership and degrade partisan efforts to undermine the tribunals. These insertions can happen before and during the trial itself. By allowing diverse groups to participate in criminal justice procedures, those who identify with the defendants among the broader public can be induced to either separate themselves from the defendant or have scepticism towards efforts to de-legitimize the court.
During the trial, witnesses can be brought into the court as symbolic tools to shape frames. As Brandt and Klep point out: ‘As legal instruments, both truth commissions and international criminal courts (must) regard the victim-witness as instrumental to their own processes and goals.’Footnote 62 Witnesses not only serve their manifest function of presenting evidence to fact finders, they also allow for different groups to participate in courtroom procedures, which can pay immense symbolic dividends. Alongside their probative value, the careful and strategic use of victim-witnesses can benefit the tribunal itself, such as fleshing out historical narratives and providing the appropriate moral gravity to what are some of the most serious crimes imaginable. However, this can also include the much larger task of bolstering the legitimacy of the tribunal itself – the necessary condition for other transitional justice goals to which the tribunals contribute. While there are restrictions on the admission of witnesses at most international tribunals (for example, the ICC requires that all evidence, including testimony, be ‘relevant and admissible’Footnote 63), prosecutors nonetheless have a great deal of discretion in who they can call as a witness. This means that prosecutors can use witnesses as a weapon in framing contests as, undoubtedly, would defendants. Calling witnesses associated with a criminal defendant’s ethnic or tribal group, rather than exclusively relying upon victims from groups opposed to her, can bolster legitimacy to a sceptical public.
Because narratives of victimization are often key to a group’s identity, they are frequently deployed to justify violence. Victim-witnesses who can challenge these narratives are invaluable to prosecutors.Footnote 64 Allowing members of groups associated with defendants to describe their own victimization, particularly when it results from the actions of the defendant, can help undermine both the claim that a tribunal is biased and that the defendant truly represents the people he purports to. During the trial of Slobodan Milošević, Borisav Jović, a Serbian official who opposed Milošević’s rule and decried the ‘personality cult’ that developed around the leader, testified against the former President. At Nuremberg, prominent German officials such as Field Marshal Friedrich von Paulus (and even Albert Speer) testified to the actions of the Nazi leadership, condemning their actions. This served both to psychologically distance the German people from the acts of their leaders and to bolster the tribunal’s legitimacy to the German public. Group members who participated in the violence, or even those who witnessed it, can likewise be effective symbolic instruments of legitimacy. Such witnesses, when carefully and appropriately presented before the public, can challenge the framing narratives of defendants and allow other group members to distance themselves from the defendant. This distance can allow the defendant’s supporters to look upon an international tribunal more objectively and perhaps give its findings more credence.
As with other areas of international justice, the hybrid tribunals have some important advantages in securing the participation of a diverse group of witnesses. Their proximity to the sites of the conflict make the logistics of securing victim-witnesses simpler and less expensive. Equally important, the local personnel working in the prosecutor’s office can advise the court regarding which local witnesses would be most effective at displaying the court’s impartiality to the broader domestic public. A defendant who is widely seen as a quisling is far less likely to be persuasive than one who is seen as a national leader or has widely esteemed moral authority. When carefully selected and presented, witnesses can be symbolically resonant and local experts associated with a tribunal are essential to effectively communicating its legitimacy to a wary and sceptical public. The fact that the hybrid tribunals insinuate themselves into the communities whose leaders they are investigating and prosecuting gives them more immediate access to a variety of experts, general, and victim-witnesses from all sides of a conflict.
3.3 Prosecutorial strategies
One of the unfortunate realities of armed conflicts and other mass human rights violations is that there is always plenty of criminality to go around and war often represents a ‘target rich environment’ for prosecutors. All sides in almost every conflict have committed atrocities, though in many cases, blame for many of the offences can be fairly placed on one side. While the roles of the prosecutors and other parts of the tribunal differ, there is a shared commitment to promoting the institutional legitimacy of the tribunal itself in most cases.Footnote 65 Structurally speaking, the prosecution is allied with the rest of the court in a shared mission of legitimizing the tribunal to the broader public. Therefore, prosecutions should be structured so as to avoid solely prosecuting one side of a conflict, even if that may at times lead to a problematic relationship between the number of offences committed by members of a group and the amount of cases prosecuted by them. While prosecutors clearly seek convictions as part of their professional tasks, they must be equally conscientious about the legitimacy of the tribunal itself and have one eye on this as they pursue offenders.
Even before the trial has begun, the prosecution can interview a wide variety of witnesses to give all sides an opportunity to ‘buy into’ its proceedings at their outset. Formulating indictments for international tribunals is a long, involved process that can take months or years to complete. It is essential that prosecutors interview all sides of a conflict, not only for information-gathering purposes but further to allow members of different groups to understand and hopefully accept the institution as fair and impartial. Famously, David Crane, the Prosecutor for the SCSL conducted a months-long ‘listening tour’ through Sierra Leone to help promote the tribunal’s work, learn about life during the country’s war, and to explain the court’s procedures to a largely uneducated Sierra Leonean public. Research shows that the participation ‘in a consultation process (formative evaluation) increases the impact of transitional justice mechanisms on sustainable human development,’ which in turn can ‘foster a sense of ownership and participation’.Footnote 66
Prosecutors in international and hybrid courts do not simply prosecute criminal acts committed during a conflict. Their mandates (often restricted to a few select categories of offenders) and their limited resources require prosecutors to thoughtfully distinguish among the possible targets when crafting their indictments. Prosecutorial discretion is an essential part of their work.Footnote 67 As a result, these prosecutions are tailored in thoughtful ways. Often the choice of prosecutorial targets and the language used in criminal indictments are designed to serve a narrative function – they produce an account of what happened in a conflict, what the motivations of the actors were, and most importantly, who bears the lion’s share of the blame for a conflict. This narrative can be put forward through the indictments themselves (so-called ‘speaking indictments’), public statements by prosecutors, and even in the courtroom proceedings. Prosecutors must use their limited resources and mandates to maximize their impact on the public understandings of a conflict, constructing complex stories from a relative paucity of resources.
To the extent that prosecutorial decisions act as messages to the broader public, they are clearly a part of the larger framing contests surrounding a tribunal and prosecutors must be self-conscious about the messages that their prosecutions send. Prosecutions that exclusively target the crimes committed by one side of a conflict leave the tribunals vulnerable to charges of bias – regardless of whether or not representatives of this group committed a disproportionate number of offense. Critics can often cite crimes committed by the ‘other side’ in a conflict, crimes that may not be prosecuted by the tribunal for justifiable reasons, as evidence of the court’s bias. Unprosecuted crimes allegedly carried out by other groups can be easily used to attack a tribunal and tarnish its claims to impartiality. While vulnerable to charges of creating a false equivalence among parties, targeting crimes committed by all sides of a conflict will most likely bolster a tribunal’s legitimacy.
Here again, hybrid tribunals have some advantages over other types of international tribunals. While there is no reason that prosecutors at the ICC cannot incorporate domestic identity politics into their prosecutorial strategy, the proximity of hybrid courts to the site of the conflicts and the domestic input allows prosecutors at hybrid courts better access to domestic witnesses as well as a stronger ‘insider’s understanding’ of the conflict and the community. When deployed effectively, this local knowledge can make prosecutors more effective at communicating their strategy and its underlying narrative to the public. Local media and local personnel can be marshalled to defend the strategy to local stakeholders in a way that a tribunal located further afield, such as in The Hague, cannot. Many countries where international tribunals operate are only sporadically plugged into the internet and other global communications networks and must often rely on more traditional media (public events, local radio, and television) to communicate to their peoples. Therefore, the closer the tribunal is to these communities the more likely prosecutorial narratives are to resonate.
The clearest example of a prosecutorial strategy that attempted to achieve this sort of even-handedness was the initial set of indictments issued by the Prosecutor’s Office at the SCSL. While most observers, and most ordinary Sierra Leoneans, believed that the RUF and Foday Sankoh deserved most of the blame for the conflict, the initial set of indictments issued by the Prosecutor’s Office was surprisingly equitable in its approach. Not only was the RUF leadership targeted for prosecution, but equally, leaders of the forces aligned with the government were indicted by the Prosecutor. The initial 2002 indictments were issued nearly simultaneously and broke the indictees into three separate prosecutorial groups: the RUF, the Armed Forces Revolutionary Council (a group allied with the RUF), and the Civil Defence Forces (CDF)/Kamajors (pro-government forces). Leaders of each of these movements were targeted and they were ultimately joined into three trials for the leaders of the respective groups. Beyond the logistical and financial benefits of such an approach, this had important symbolic benefits. As Cockayne points out, joining the trials would aid ‘the court’s construction of a coherent historical narrative describing and defining the roles played by the three major groups in the Sierra Leone conflict’.Footnote 68 Through his indictments, Crane was conveying a very specific message to the Sierra Leonean people, not only about the conflict but about the impartiality of the tribunal itself.
It is important to note that this strategy was not without costs. The majority of Sierra Leoneans blamed the RUF almost exclusively for the crimes committed during the conflict and some of the leaders of the other groups were widely popular. Sam Hinga Norman, a pro-government leader, was considered a hero by many Sierra Leoneans and some argued that he was only targeted because he was a political rival to President Kabbah. This suspicion was bolstered when Norman died under somewhat mysterious circumstances while being treated in Dakar and still under indictment. While it is undoubtedly true that the Prosecutor’s decision to target the CDF and other pro-government forces was unpopular with some, it is equally true that this strategy helped to inoculate the tribunal from charges that it was solely a tool to persecute enemies of the government.Footnote 69 Those who were sceptical about Norman’s prosecution were unlikely to withdraw their support for the SCSL and it likewise served the purpose of displaying the tribunal’s purported fairness, impartiality, and even-handedness.
3.4 Outreach
No section of the hybrid tribunals is better placed to counteract the othering frames than their outreach programmes. Observers of the first generation of international ad hoc tribunals recognized a significant weakness in their failure to effectively translate and promote their proceedings and their findings to a domestic audience.Footnote 70 To remedy this, most of the later tribunals, including the hybrids, created special departments tasked with communicating the tribunal’s activities to the public. Some of these sections were or are under the authority of the prosecutor’s office, while others operate under the (neutral) registry or a similar subsection of the tribunal and many were allied with international NGOs. The ECCC has a Public Affairs Section (PAS) and Victims Support Section (VSS), each of which disseminates materials and information about the tribunal with the support of the Documentation Center of Cambodia (DC-Cam), the International Center for Transitional Justice (ICTJ), along with other NGOs.Footnote 71 Similarly, the SCSL had two outreach offices, one under the Registry and the other under the Prosecutor.Footnote 72 These programmes help raise the profile of the tribunals and make their materials, proceedings, and judgments available and comprehensible by a broader public, many of which are unfamiliar with the tribunals’ operations.
Many of these outreach programmes are structured in such a way that they impartially introduce the tribunal and its proceedings to the public – what Peskin has described as an ‘engagement model’.Footnote 73 They release materials to the public, sponsor talks and publications that support the tribunal in order to make the programme accessible. While these outreach programmes have suffered many of the challenges that other aspects of the tribunals have faced (poor funding, lack of political support etc.), they are crucial to the overall mission of facilitating transition to a democratic stability. As Cohen puts it: ‘The possibility of trials having an effect on reconciliation, accountability, and the promotion of respect for the rule of law depends on effective outreach.’Footnote 74 By making the proceedings broadly accessible, the outreach programmes promote the tribunals and can facilitate ownership.
Given the preceding analysis, we can also see a further potential for these outreach programmes beyond simply informing the public about the tribunal. They can also help shore up the legitimacy of the tribunals by promoting their legitimacy in media framing contests. They aim to persuade, albeit subtly, that the tribunals are legitimate forums for addressing the crimes that happened in the preceding conflicts and are a part of indigenous justice. They are tools designed, unconsciously or otherwise, to frame the tribunals as part of a justice process that is not ‘other’. Rather than seeing outreach programmes as neutrally disseminating information about the proceedings at the international tribunals, it is better to see them as part of a framing strategy rooted in identity politics. By bringing the wider community closer to the proceedings of the tribunal they undermine efforts to other the tribunal and thereby create better possibilities for ownership. They do not simply provide information about the tribunal’s proceedings, they shape public perceptions of the tribunal as an impartial body and not a product of the identity politics which have often played a crucial role in shaping the preceding conflicts. They are weapons in a framing contest that the tribunals’ supporters are waging with nationalists and other international tribunal sceptics.
There are several ways that outreach programmes should be further oriented to help promote the legitimacy of hybrid tribunals. Work in the communications strategies of humanitarian organizations has developed a model known as ‘active impartiality’ whereby, ‘the organization is impartial as regards to people (so acts in a non-discriminatory manner) but is partial to their actions’.Footnote 75 Thus, for example, organizations like the ICRC and Médecins Sans Frontières, speak out against those who violate norms, but do not discriminate between the groups that do so. Thus, a hybrid court should be able to actively and vigorously defend its claims to legitimacy and its right to impose justice on defendants while not taking sides in the actual intergroup conflict. Being a vigorous voice in defence of the legitimacy of the tribunal and its place within the domestic legal and political system (and not simply a source of information) should be a priority for the outreach programmes of hybrid courts.
While the SCSL had some personnel problems from a representational standpoint, the outreach problem faced a different set of issues. The programme was created with an awareness of the deficiencies in public relations at the ad hoc courts and was widely lauded as the ‘jewel in the crown’ of the SCSL. Given the nature of the conflict in Sierra Leone, it was inevitable that many local stakeholders would be sceptical about the tribunal, making effective outreach particularly challenging. Many Sierra Leoneans questioned the need for the tribunal as well as the decision to focus on only the highest profile defenders, (many people who had committed crimes were still in the communities where they had murdered and robbed) and so the tribunal faced a justifiably sceptical public. As a further handicap, the public sphere in Sierra Leone, such as it is, provided few reliable sources and so the tribunal faced withering criticism in the press. ‘Coverage in the domestic news media has been largely hostile, regularly making allegations of unfair trials and ill treatment of detainees.’Footnote 76 Finally, the difficulties in setting up and staffing the tribunal meant that outreach at times appeared more as a luxury than a necessity and there was a noticeable lack of financing.Footnote 77
In the early years of the SCSL, outreach was located under the Office of the Prosecutor until it was placed under the Registry in 2003. When Crane conducted his listening tour, he travelled around Sierra Leone, not only to listen to Sierra Leoneans but also to lobby for the tribunal’s right to exist. During this tour, he confronted the issue of identity politics head on, strongly defending the SCSL against efforts to other it:
African leaders can easily manipulate popular thinking by loudly declaring that the justice being imposed (and threatening the status quo or a leader’s power) is “white man’s justice,” playing upon the fears of colonialism as a way of excusing the rampant corruption and impunity that is Africa, particularly West Africa.Footnote 78
While Crane clearly understood the framing dilemma facing the SCSL, his association of Africa with corruption clearly played into the hands of the sceptics who charged that the tribunal was composed of ignorant (and condescending) outsiders. Nonetheless, the outreach effect was eventually moved to the office of the Registry, another part of the tribunal devoted to promoting the legitimacy of the tribunal, albeit more indirectly.
Evaluations of the impact of the tribunal’s outreach programme are divided, ranging from sceptical to highly positive. Sesay asserts that:
With its limited funding and its mainly Sierra Leonean staff, the outreach section of the SCSL has done more than its predecessors – the ICTY and ICTR – to disseminate information and maintain awareness about the proceedings of the Court’ but concedes that “much more could have been done”.Footnote 79
Similarly, Ford’s analysis of empirical data of the SCSL outreach programme gives it a mixed review, arguing that its contribution to the rule of law in Sierra Leone was, to the extent that it is measurable, weak.Footnote 80 A more optimistic analysis of the SCSL’s outreach programme was provided by Clark. Citing survey data in Sierra Leone and Liberia, she argues that ‘the Court’s Outreach work has been extremely successful and that its Outreach Mission Statement has been largely achieved’.Footnote 81
Not only did the tribunal’s outreach programme seek to educate the public about the tribunal, but also they engaged in activities that located the tribunal within Sierra Leonean society. Sesay’s reference to the composition of the staff fits with our analysis, as does Clark’s claim that a ‘crucial fact’ in the outreach programme’s success was locating its office in the centre of Freetown.Footnote 82 Further, the speed with which the tribunal engaged with the public (a key value in effective public relations) and the direct efforts to convince the public are credited with enabling the tribunal’s public relations success by Clark. During the Taylor trial, the outreach programme teamed up with the BBC to get Sierra Leonean journalists to The Hague. In short, if the SCLS’s outreach programme had successes, they were a result of active engagement with the public, often filtered through identity frames, and not in a mere passive educational or informational role. Situating itself politically, socially, and geographically within Sierra Leonean society gave it a great degree of effectiveness in its public relations campaign and bolstered the tribunal’s legitimacy in the public.
4. Conclusion
The incorporation of elements of the domestic criminal justice system explains why hybrid tribunals are unique in the field of international justice, but the preceding analysis allows us to understand exactly why this hybridity has so much potential for establishing their legitimacy. By combining both domestic and international factors in the criminal trial, they are not as easily susceptible to the othering process – it is harder to portray them as illegitimate outsiders. By incorporating the symbols of belonging to the group whose members are judged by international justice, the tribunals are better able to avoid the othering process that is essential to strategies rejection of international justice.Footnote 83 Quite simply, it is harder to other people who look like you, speak your language, and are from your own background, even if they are part of procedures and institutions that may be alien. It is harder to portray a tribunal as a tool of partisan revenge if all sides are prosecuted. As Hobbs points out, the reflection of local actors in a hybrid tribunal bolster its sociological legitimacy, or put negatively, the presence of local actors makes it more difficult to delegitimize the institutions.Footnote 84 Be they in the form of personnel decisions, procedural norms, language, witnesses, or prosecutorial strategy, putting a domestic face on international justice represents a powerful symbolic choice.
These structural advantages do not mean that hybrid tribunals are immune to hostile frames, it simply suggests that the tribunals can and ought to be designed in a fashion that is not naïve about the identity politics which confront international justice tribunals. Rather than placing themselves in a (both literally and symbolically) distant position from conflicts and ignoring the identity politics that often shape the debate around international justice institutions, the hybrid tribunals have located themselves within the domestic justice system. They have actively sought to portray themselves as a part of domestic justice, with greater or lesser success. This position makes it more difficult to portray the tribunals as illegitimate outsiders and bolsters their legitimacy claims. While their procedures are largely up to the standards of western justice, there is nonetheless a ‘domestic’ face to the tribunals which helps to prevent the othering frames deployed by enemies of the tribunals.
Of course, it may be impossible or nearly impossible for criminal justice institutions to be seen as impartial or fair in situations where ethnic politics and identity politics more generally are deeply entrenched. The tribalistic tendency to blame the ‘other’ for violence may prove too tempting and too ‘natural’ in many situations. The emotional toll that comes from learning about offences committed by one’s people, who were acting in one’s name, may be so great that even obvious evidence of atrocities will be rationalized, minimized, or simply ignored. A 2017 survey of Serbian citizens found that, ‘revisionism and denialism are prevalent, and ethnic bias is entrenched’ – 56 per cent found the ICTY’s findings biased, and only 6 per cent trusted them.Footnote 85 There is no universal rule regarding establishing legitimacy. Acknowledging responsibility and accepting hard truths is often a process that takes place over the course of generations, not years. The empirical evidence regarding the acknowledgement and denial of group responsibility is vast and complex, but the evidence suggests that under appropriate conditions, peoples can overcome identity issues and acknowledge uncomfortable historical realities.Footnote 86 On the other hand, if it truly is impossible for people to view international justice institutions as objective in highly fractured societies, then the possibility of hybrid courts contributing to transitional justice is going to be very limited regardless of how they are constructed.
It is certainly true that partisans for a defendant will relentlessly seek to undermine a tribunal’s legitimacy. Those who co-operate with or work for a tribunal can easily be maligned as traitors for allegedly participating in international efforts to scapegoat a group and the motivations of these participants are always subject to partisan scrutiny. Further, the representational politics involved in international justice are always going to be part of much broader framing contests in the public sphere. The point of this analysis is to suggest that tribunals should not be passive in these contests – they must be active and partisan, but only partisan in a very specific fashion. The media, academics, and political elites are also powerful actors in framing contests. They must seek to use all the tools at hand to present themselves as a non-partisan impartial observer, but none of these tools guarantee success. Nonetheless, the authority of these tribunals, and their ability to contribute to transitional justice depends on their capacity to communicate this status.
Kelsall argues that a tribunal’s legitimacy undermines the public’s ability to truly grapple with mass violence by reducing it to an impoverished discourse of law and criminality. ‘By being removed from the political sphere, these strategies, acts and modes of behaviour are extracted from the arena of popular debate and struggle (or indeed expert analysis), and rendered susceptible to the intervention of policing, juridical and penal agencies.’Footnote 87 And thus:
The effect of this narrow aperture is to cast the facts in a particular light, depoliticising certain modes of action by calling them criminal, motivated, where motivations are spoken of, by pure greed, and providing a point of leverage for the penal apparatus.Footnote 88
While this is a genuine concern, it may, however, be too simplistic. Indictments, convictions, and other aspects of the criminal justice system do not necessarily undermine other modes of analysis or other more overtly political efforts to combat mass violence. Few are naïve enough to believe that war crimes or other acts of mass atrocity occur ex nihilo by actors who are not a part of broader social and political movements or that punishing wrongdoers means that other approaches to political struggle are thereby foreclosed. Equally important, there are many strategic advantages to depoliticizing mass atrocities for those interested in pursuing transitional justice: they can shape historical and contemporary narratives in ways that allow long-running conflicts to be drained of their intensity and their propensity to erupt into mass violence. Many places where mass violence has occurred are populated by people who have had too much of the wrong kind of politics and any effort to reduce the intensity of these forms of politics is beneficial to transitional justice. Properly constructed and marketed (for lack of a better) term, hybrid courts can do just that.
International courts are in a unique political and social position and are prone to a set of challenges that few domestic institutions must face. It is essential that those vulnerabilities be clearly understood and delineated so that they can be effectively countered by those who support them. Simply functioning as though an international tribunal, hybrid or otherwise, is no different from a domestic court, may provide a tribunal with a high degree of normative legitimacy as conceived by international legal elites, but it will most likely lack the popular legitimacy required to make a meaningful contribution to transitional justice. The institution would be pilloried by actors who have a number of rhetorical tools to frame the tribunal’s findings as illegitimate, biased and therefore irrelevant to any serious historical accounting. The failures of predecessor institutions to the hybrid courts, the ICTY in particular, can be traced in many ways to their attempts to operate as though they were normal criminal justice institutions.Footnote 89
Those interested in promoting criminal tribunals as a tool of transitional justice must be aware of these delicate identity issues and how they are framed in the public sphere. This means that criminal lawyers and international criminal justice scholars must take psychological and sociological features of identity politics more seriously in all aspects of international criminal justice, and construct hybrid tribunals accordingly. While plenty of scholars have suggested that the tribunals must be run in a fair, impartial manner,Footnote 90 this is clearly insufficient on its own as it ignores the social and political dynamics of such tribunals. For tribunals to make an effective contribution to transitional justice, they must be taken seriously both by the actors involved and by the public outside of the afflicted state. To do this, the tribunal must ‘sell’ itself to the general public as a competent, impartial institution and understand that they are in a framing contest with those who wish to undermine them. Fighting attempts to other international justice is a war that must be fought on many different fronts. However, simply assuming that a tribunal that follows recognized procedures of international justice and which is established according to proper legal norms, will be legally correct but will fail to meet the needs of societies pursuing a transition to stability, democracy, and the rule of law. Rather, they will simply become more fodder for the identity politics that have consumed these societies and were often the cause of the initial violence.
If it is true that we are on the cusp of a new generation of hybrid courts, this next set of tribunals must devote significantly more resources to actively engaging in the framing processes in the public sphere. They can do this by (i) consistently countering frames that seek to portray the tribunals as products of identity politics by conscientiously including representatives of relevant stakeholder groups, and (ii) investing further in those parts of the tribunal that play a significant role in this counter framing process, most notably outreach programmes. Simply performing according to the demands of the impartial reasoner frame without due attention to the alternate frames that are at play in public and media discourse is insufficient. As the United Nations High Commissioner for Human Rights put it, ‘Ownership should be considered both at the point of creation and whenever any important decisions are made throughout a tribunal’s existence, incorporating the engagement of a variety of actors, including civil society.’Footnote 91 The ownership must not only be ‘considered’, however, it should be actively and aggressively communicated to local stakeholders. Transitional justice is a social and political process first and foremost and legal institutions can only play a significant role in this process if they remain aware of that fact and act accordingly.
