SEATTLE — Crimes against humanity, war crimes and acts of genocide are all crimes that fall under international jurisdiction. The prosecution of these crimes, however, still remains a complex, contentious and multidimensional process 70 years after the first international tribunals in Nuremberg and Tokyo.
During the 1990s, ad hoc (meaning arranged for a particular purpose) tribunals were instituted to prosecute crimes that occurred during the Bosnian War and the Rwandan genocide. The International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia continue as active bodies today, operating out of The Hague in the Netherlands. Although many precedents have been set by the actions of these courts, most notably with respect to the prosecution of sexual assault during genocide, their effectiveness has been criticized by champions of state sovereignty and others. The distance and third-party involvement make the scope of ad hoc tribunals limited, and only top-level offenders can be prosecuted.
The Limitations and Benefits of Hybrid Tribunals
Hybrid tribunals adjudicate international crimes by blending domestic actors while respecting international norms, such as human rights statutes and the Geneva Conventions. By involving state and local penal codes, judges and legal professionals, state sovereignty is respected while cultural and political expectations are retained. The benefits of hybrid tribunals are vast, most specifically for the rights of victims. The crime is not distanced from where it occurred, and justice remains within the jurisdiction of the state. In addition, the decisions are more likely to be respected and upheld if they are made within a country. The precedents set by local courts also have the possibility to make waves in future legislative decisions.
There are caveats to the benefits of hybrid tribunals, however. A lack of universal jurisdiction occurs when different tribunals are constructed for every conflict. There is less consistent treatment of international crimes, since criminal bodies that incorporate more domestic law will vary from state to state. In addition, different sociocultural standards and interpretations could enable punishment to be legislated according to the state, rather than international law. If a state viewed rape, for example, as a less severe offense, the punishment would be lessened. International standards were created for a reason; these laws exist because universal ethical standards deserve to be in place and serve a purpose for justice. Hybrid tribunals could compromise the adjudication of these principles.
Syria an Example of Where a Hybrid Tribunal Could Be Effective
In a modern context, prosecution of war criminals in Syria calls for the creation of some kind of international body. The multidimensional conflict situation in Syria remains volatile and unresolved almost eight years after its Arab Spring, and many war crimes and crimes against humanity have been committed. Three avenues exist for prosecution: the International Criminal Court could launch an investigation, a hybrid tribunal could be created or foreign national courts could prosecute and create an accountability process.
Unfortunately, none of these options are extremely viable at this point, due to existing structures of international governance and the complex nature of the situation. In order for the International Criminal Court to prosecute, a U.N. Security Council resolution would have to be passed giving them jurisdiction. Currently, any proposed resolutions that aim to enable this have been vetoed by Russia and/or China. Unless these governments sever ties with the Assad regime, this avenue is impossible.
The benefits of hybrid tribunals have been argued; however, the solution is currently not feasible, because the host state must consent. An international buffer zone has also not been successfully established, and security concerns combined with high costs would not be worth the limited positive effects. A neighboring country could host, but Turkey and Jordan are unlikely to agree to that. One strong possibility is that the Special Tribunal of Lebanon could expand its purview to include Syrian war criminals, but sovereign and state immunities create obstacles for high-level officials.
In light of the current circumstances, it is important to reflect on the successes of international prosecution and revel in the knowledge that, as time passes, justice will be served. When the time comes, and the situation in Syria becomes approachable, a hybrid court can be established that will deliver justice to victims.
– Jilly Fox