The international criminal justice landscape is currently dominated by the International Criminal Court (ICC) and its case choices, relationships with powers such as the US, and impacts upon conflicts. Yet some of the most dramatic developments in the field have taken place outside of the ICC, in hybrid courts and tribunals. On 30 May 2016, Hissène Habré was convicted for his role in crimes against humanity, war crimes, and torture committed during his reign as President of Chad. Habré’s trial took place not in N’Djamena, but in Dakar, Senegal, where the Extraordinary African Chambers (EAC) were established as a joint venture between the African Union (AU) and Senegal for his prosecution.Footnote ¹ It was the first time that a former head of state has been prosecuted for human rights crimes in the courts of a different state. On 26 April 2012, Charles Taylor was convicted by the Special Court of Sierra Leone (SCSL) of aiding, abetting and planning war crimes and crimes against humanity committed while he was President of Liberia. This was the first time that a sitting head of state was tried for such offences, and the first conviction of a former head of state (he resigned as President during the trial) by an international or internationalized tribunal since the Nuremberg trials after the Second World War.

Hybrid courts differ from the ICC and other international courts and tribunals such as the International Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR) in a number of ways. They feature varying combinations of international and domestic staff, operative law, structure, financing, and rules of procedure and are usually established in partnership with a domestic government in the state where alleged crimes took place.Footnote ² The first generation of hybrid tribunals was initiated by the creation of the Regulation 64 Panels in the Courts of Kosovo and the Special Panels of the Dili District Court in East Timor in 2000. These were followed by the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the War Crimes Chamber of the Court of Bosnia and Herzegovina, the Iraqi High Tribunal, and the Special Tribunal for Lebanon. However, with the creation of the International Criminal Court in 2002 and an international community increasingly prioritizing funding for international security and combating terrorism, interest in creating additional hybrid courts waned. From 2007–2012, the hybrid model had seemingly fallen out of favour with no new hybrid courts created during this time.

Recently, however, there has been a resurgence of interest in building criminal justice mechanisms for atrocity crimes that sit somewhere between the domestic and the international. The reasons for this resurgence of hybrid courts have been addressed at greater length elsewhere, but it is notable that the resurgence accompanied a recognition of the limitations of the ICC.Footnote ³ The establishment of the ICC was expected to make hybrids redundant, but the shortcomings of the Court, in particular perceived politicization and bias, meant that states turned once again to the hybrid model.Footnote ⁴ The agreement establishing the EAC was signed between the AU and Senegal in 2012. As the Habré trial progressed in the Palace of Justice in Dakar, officials at the African Union negotiated the creation of a hybrid court in South Sudan while, in the Central African Republic, the hybrid Special Criminal Court was being staffed and set up. A tribunal that is, for all intents and purposes, hybrid, has also been established for Kosovo (the Kosovo Specialist Chambers and Specialist Prosecutors Office) and hybrids have been proposed for Syria, Sri Lanka, Myanmar, Liberia, and for the bombing of Malaysian Airlines Flight MH17 over eastern Ukraine, among other situations.

This special section explores hybrid tribunals in relation to the concept of resilience. It is an output of the Hybrid Justice project, which was established in 2017 to generate academic research on the impact of hybrid criminal mechanisms in post-conflict states.Footnote ⁵ The project was a collaboration between lawyers, academics, and activists to compare and evaluate past hybrids as well as produce academic publications along with a set of guidelines for the establishment of future hybrids.Footnote ⁶

The Hybrid Justice project was a response to demand from people involved in establishing hybrid tribunals for information on, in the terminology of the project, how to design such institutions to be resilient in themselves and to contribute to resilient societies. The project was funded by the Rockefeller Foundation through the Institute for Global Affairs at the London School of Economics and Political Science, as part of their support for research on resilience in general and in post-conflict states in particular. Despite the conviction of many in international organizations and the donor community that justice is positively correlated with stability and resilience post-conflict, and despite many of the claims in academic research highlighting benefits that should accrue from the operation of hybrid tribunals seeming closely linked to resilience (in particular peace, reconciliation and development), there has not been a great deal of reflection on whether a resilience framework can contribute usefully to analysis of the impacts of criminal justice mechanisms.Footnote ⁷

Resilience is conceptualized within the Hybrid Justice project in two ways. Internal resilience is understood to mean the extent to which the design of hybrid mechanisms enables them to function robustly and with legitimacy in the face of external pressures from donors, host states, states which oppose the mechanism, and other interested parties. Societal resilience is the extent to which hybrid mechanisms enable post-conflict societies to heal, reconcile, strengthen, and address the root causes of prior conflict. Societal resilience might include the extent to which hybrids support the embedding and extension of the rule of law, democratization and the development of a human rights culture. The articles in this section, as well as other academic work emanating from the project, eschew a focus on efficiency, convictions rates, prosecutorial strategies, or value for money, in favour of an examination of the aspects of hybrid design that enable these tribunals to withstand political pressures and contribute to the resilience of the communities in which they operate.

The authors in this section differ considerably in how useful they find the notion of resilience in the analysis of hybrid tribunals – not least because it is a relatively slippery concept, eluding consistent definition. As Wiebelhaus-Brahm notes in his article below, for some, resilience means the ability to resist change, but for others, it is marked by the ability to adapt. These are crucial differences and their implications are far-reaching. Wiebelhaus-Brahm argues that while resilience would appear to be concerned with the empowerment of domestic populations, through its recognition that societies are stronger if all of their members are secure rather than just their leaders, in practice can lead to a justification of neoliberal policies of control that reject emancipatory agendas in favour of the protection of the vulnerable by the state against ever-possible, but unpredictable, threats. Populations are denied agency on this view, and the focus switches to protection instead of the structural transformation that is often aspired to by supporters of justice processes. Vagias is equally unsure of the value of the concept, noting that what appears to be a new path seems to take us to an old destination in terms of research findings. All that the concept of internal resilience does within his analysis is to provide a different way to describe the politics which is embedded within tribunal design from the outset. Here, then, the conceptual value of resilience may be minimal, and the concept appears to offer more of a repackaging of previous ideas than anything distinctly new. In addition, both Wiebelhaus-Brahm and McCaffrie make the point that it might be too soon to assess the impact of hybrids on societal resilience. Generating resilience is a complex process involving deep lying societal characteristics – it would be unrealistic, they argue, to expect observable societal change in the space of a few years.

Still, resilience may offer a new way for scholars to organize their thoughts on hybrid – and other – courts. Each of the four articles in this special issue adds something important to the current scholarship on the operation and impacts of hybrid tribunals. Wiebelhaus-Brahm works carefully through the available evidence on when and how hybrids might be internally resilient and how they might bolster societal resilience. In terms of internal resilience, he highlights the important role of resources in bolstering or undermining a hybrid’s ability to resist pressure. Hybrids are often tasked to achieve ambitious mandates, but funded through voluntary contributions, sometimes in tandem with national government funding. This leaves them reliant on donors and in potentially precarious positions if they are not meeting donor expectations in terms of targets of indictments or speed of prosecutions. Vagias echoes this concern in his assessment of the influence of donors within hybrids in the four cases he covers in his piece.

In terms of external resilience, Wiebelhaus-Brahm argues that there is little empirical data available on how hybrids can maximize their beneficial impact, or contributions to external resilience. It is important to see the proverbial trees for the forest. It remains tremendously difficult, perhaps impossible, to disentangle the effects of hybrid courts from everything else happening in the societies in which atrocity crimes are alleged to have taken place. These societies are frequently the locations of a range of peacebuilding and development interventions as well as subject to a series of domestic government policies. Without making grand claims about societal resilience per se, Wiebelhaus-Brahm maps out a route through which hybrids can be expected to have an impact. He notes that the role that hybrids play in the development of civil society, as groups are activated or coalesce around justice issues, can contribute to the long-term impact of hybrids. He argues that ‘one of the more dramatic ways that hybrid courts might promote the rule of law is by generating public demand for it’.Footnote ⁸ McCaffrie’s article makes a similar claim: of the civil society employees that the Handa Center interviewed in the research on which McCaffrie’s article is based, all but one identified the proliferation of NGO-led projects focusing on the Khmer Rouge period to be a direct legacy of the ECCC. The fostering of civil society, including through attracting donor attention to projects promoting the rule of law or forms of victim engagement and learning, is arguably an important indirect contributor to societal resilience.

Like Wiebelhaus-Brahm, McCaffrie uses the resilience framework to draw our attention to an underexplored aspect of hybrid justice: its impact on education. For the most part, she argues, the literature on impact (at least in the case of the ECCC, which is her focus) concentrates on the tribunal’s effect on capacity building in the domestic judicial system, on civil society development and on reparations and victim participation. McCaffrie asserts that this occludes a particularly important element of the ECCC’s impact: its educative role. Based on original survey research in Cambodia, McCaffrie finds that almost a third of surveyed university students view education as the most important legacy of the tribunal – even more so than measures of justice or accountability. They found visits to the ECCC to be particularly impactful, in contrast to book-learning from newly opened archives, emphasizing the importance of accessibility. When proceedings at hybrids take place in physical sites and languages that are accessible to the wider population, their potential for beneficial impact is increased.

Fichtelberg’s article highlights other potential benefits of the dual local-international nature of hybrid courts, which link to McCaffrie’s findings on accessibility. Hybrids can be accessible beyond just location and language, in comparison to international courts: they can operate domestic law and be staffed by people from groups directly affected by the crimes being tried. Given that many of the conflicts in which the crimes prosecuted at hybrids took place were fought between groups with different ethnic, religious or national identities, Fichtelberg argues that hybrid tribunals are much better placed than external courts to underwrite their own legitimacy. Legitimacy contests have been a common feature of international and hybrid courts, as supporters of tribunals frame them as an ‘impartial reasoner’, and opponents seek to characterize them as ‘illegitimate outsiders’, in the framing contests that Fichtelberg describes. The legitimacy politics of atrocity trials are complex, and Fichtelberg shows that hybrids are well placed to be successful in being framed as legitimate. Within hybrids, domestic actors are seen as integral and essential to the administration of justice, which can underwrite their legitimacy, unless the courts are seen as tools in local power struggles. Hybrids are able to use their international staff and structures to avoid such a charge. They are, at least in theory, better placed than either national or international courts to be perceived as legitimate organs of justice in divided societies. The more legitimate a tribunal is perceived to be, the more internal resilience it is likely to enjoy, as it will not have to fend off regular attacks or attempts to undermine it. A hybrid perceived to be legitimate is also likely to make a more substantial contribution to societal resilience, as their findings and judgments should be more broadly accepted. However, Fichtelberg is careful to note the political value of legal legitimacy for domestic actors: hybrids are vulnerable to being used for political projects and score-settling. It is important, therefore, to avoid assuming that they will automatically have beneficial impacts.

Vagias’s article examines the logics of case selection – an incredibly important decision-making point in the operation of a hybrid, which can set in motion a specific trajectory of likely impacts from the very start of the legal proceedings. Case selection, as Fichtelberg’s piece suggests, is one of the most contentious aspects of a hybrid’s work as the chosen cases do much to signal impartiality or bias, and to concretize a particular narrative of the alleged atrocity crimes and any conflict in which they took place. Case selection is also a key marker of internal resilience: if an Office of the Prosecutor is able to select cases relatively free of political and financial constraints, this indicates a relatively high level of internal resilience. Vagias shows that this is rarely the case in hybrids. The orthodox position is that while political actors might circumscribe the mandate of the hybrid in a broad sense by establishing territorial and temporal jurisdiction in the mandate of the court, legal officers should determine which specific cases within their mandate should be tried. However, as he demonstrates in the article, there is a significant political manipulation of case selection usually via the design of mandates which limit the kinds of cases that can be prosecuted. The freedom to select cases is limited, and thus internal resilience can be undermined from the outset of the institution’s work. It remains an open question whether lessons can be learned, and mandates can be made more encompassing in future hybrids, to ensure that case selection is undertaken as far as possible by impartial legal actors.

All of the pieces in this section highlight the importance of hybrids in contributing to the work of writing history, for good or for bad. This was somewhat unexpected – the links between history-writing and resilience are not intuitive. And yet the pieces here all note the story-telling role of hybrid tribunals. Wiebelhaus-Brahm is sceptical of assuming positive effects. He acknowledges claims made that ‘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 ⁹ However, he notes that the scholarship around hybrids, and transitional justice more broadly, is deeply divided on whether hybrid courts bring previously warring groups together around a shared history or entrench their divided narratives of the past. As McCaffrie notes, there is scholarship that suggests that attempts to forget the past are more likely to lead to the recurrence of violence than attempts to face it.Footnote ¹⁰ But research is far from conclusive on the circumstances in which this is true – it is unclear when hybrids work to weaponize or disarm the past.

McCaffrie also raises a more subtle point that the production of history alone might not have a positive effect on societal resilience – it is only beneficial, she argues, if critical historiographic skills are also taught and observers are able to understand history as constructed, and therefore reconstructable. The interplay between the idea of history as a construct and the kind of certainty seemingly required in criminal courts to justify penal sentences is a topic that cannot be covered in detail here. However, as the other articles in this section show, the production of history within hybrids is a political practice. Vagias illustrates the ways in which the mandate can dictate which crimes can be tried, and therefore which history can be told. And Fichtelberg’s examination of framing suggests that tribunal actors may be too concerned with telling a history that helps to underline their legitimacy (a history, for instance, that best resonates with the local population, or one that narrates ‘crimes on all sides’ to demonstrate even-handedness). He concludes, however, that hybrids can significantly influence the political narratives about a specific conflict, and that this can affect the broader political landscape and facilitate societal resilience in the form of transition to democratic stability.

The articles collected here suggest several lines for further research, including: the impact of hybrids alongside other justice or peacebuilding mechanisms, education systems and civil society; the ways in which tribunals write and communicate history (for who and for what purpose); and whether internal resilience and potential to positively impact societal resilience can be built in from the inception of a tribunal. This being said, the articles do not validate the resilience framework – in fact they give good reasons to rethink it either because it does not tell us anything new or because it is unclear whether resilience is something to be valued. It remains contested whether it should be understood as the ability to resist change or used to justify the securing of vulnerable populations rather than their empowerment. However, it has been useful to think with this concept, and it does direct us to trace the wider impacts of hybrids rather than just their rates of conviction or contributions to building domestic capacity. Fundamental questions remain about the extent to which impacts can be measured, and indeed the Dakar Guidelines conclude that hybrids should largely be judged on their internal resilience in the form of their independence and integrity rather than their elusive wider impacts.Footnote ¹¹ Nevertheless, the articles in this section offer good reasons to think that hybrids can have better and worse impacts, therefore good reasons to continue to critically assess the design and work of tribunals, as well as attempt to weigh their contributions to the societies in which they operate and to the victims and survivors in whose name they are created.