By David Donat Cattin* and Philippa Greer**
Introduction
In our latest article for the Harvard International Law Journal (HILJ) on the topic of modernizing the International Criminal Court (hereinafter “ICC” or “Court”) through the creation of hybrid chambers, we advocated for amendments to the Rome Statute to allow for hybrid chambers at the ICC, which could yield several significant benefits. Most notably, we suggested that the introduction of such chambers could motivate states parties to engage more readily with the Court, incentivize non-party states to join, and accomplish the principal goal of ensuring criminal accountability.
On April 19, 2023, together with Judge Volker Nerlich of the Appeals Chamber of the Special Criminal Court of the Central African Republic, we presented at Harvard Law School further interventions regarding the proposal to introduce a hybrid chamber at the ICC, as well as our experiences concerning hybrid justice, or internationalized domestic jurisdictions, in international criminal law. The discussion that ensued from this thought-provoking HILJ event has prompted a revision of our original article and the issuance of this second part with operational suggestions for legislative drafters. These suggestions are two-fold. First, we propose additional consideration of the need to avoid amendments to the Rome Statute’s articles not falling under the accelerated amendments process provided under Article 122 of the Rome Statute, which specifically envisages reforms of a purely institutional and organizational nature, and hence does not affect states parties’ rights and obligations nor carry any jurisdictional or substantive law implications. Second, we reflect on the vital importance of the outreach and community-based work of judicial institutions, including those hosting hybrid chambers. We exclusively direct this Article’s proposal to the internal law of international organizations, also known as the “proper law of international organisations,” to quote C. Wilfred Jenks (1962).[1] As such, in accordance with the letter and spirit of Article 122 of the Rome Statute, it would be sufficient that a majority of two-thirds of states parties vote for its adoption and immediate entry into force for all states parties, thereby ensuring that there would be no fragmentation and unity would be preserved in the self-contained system of the Statute.
Atrocity crimes pose a global threat to humankind. The progressive development of the practice of international criminal law, in addition to the advancement of the body of international criminal law itself, is essential to the mission of the ICC today. Both are critical to advancing the central objective of international criminal justice, namely, to combat impunity in the face of the gravest crimes of concern to the international community.
In response to Russia’s invasion of Ukraine in February 2022, states embarked on what may emerge as one of the most comprehensive responses to a situation of mass atrocities to date. Forty-three states parties referred the situation in Ukraine to the ICC and thereby allowed the Prosecutor to open an investigation immediately. Many states sent voluntary financial contributions and seconded staff to support the Court (not only to bolster investigations in Ukraine, but also to reinforce the Office of the Prosecutor’s capacities in all the other situations under investigation) and national Ukrainian investigators in their efforts to document war crimes and crimes against humanity. The ICC was invited to participate in complex mechanisms set up by relevant states to address the mounting crime waves in Ukraine, such as the Joint Investigation Team and the International Center for the Prosecutor of Aggression (ICPA) facilitated by the European Union’s Eurojust, and in Libya, specifically, the Joint Team supporting investigations into crimes against migrants and refugees, supported by the European Union Agency for Law Enforcement Cooperation (Europol). These significant developments, which are raising the bar for international cooperation in the global fight against impunity for mass atrocities, all point to the continued international legitimacy of the ICC.
Given the complexities of the subject matter, however, one of the most pressing conversations in international criminal law today is whether and how an ad hoc international jurisdiction or a specialized hybrid court can be set up to address the crime of aggression in Ukraine. The ICC’s jurisdiction over this crime is characterized by an extremely complicated regime, regarding which some states, led by Germany, and NGOs have been calling for reform. Due to a distinctive feature in its Statute as amended by the Kampala Review Conference (2010), the ICC cannot exercise jurisdiction over the crime of aggression by nationals of non-party states, including Russia (Art. 15 bis, para. 5), or perpetrated through the use of armed forces of states that have not ratified the Statute (Art. 15 bis, para. 4). Accordingly, numerous states are currently considering in tandem the creation of a new judicial mechanism that can exercise jurisdiction over the crime of aggression, with a few scholars insisting that such a court should be hybrid in nature, while a majority have expressed support for a special international tribunal (see, e.g., Oona Hathaway, Yale Law School; Jennifer Trahan, NYU Center for Global Affairs; Astrid Reisinger Coracini, University of Vienna; Philippe Sands, UCL Faculty of Laws; and David Crane, Syracuse University). These proposals are based on Ukraine’s call for, and explicit consent to, the exercise of jurisdiction over the crime of aggression, which is a crime under international law that shocks the conscience of humankind and represents the ultimate infringement on international peace and security. It falls within the framework of which all the other crimes, such as war crimes and crimes against humanity, are “contained” when they are perpetrated as a consequence of the waging of a war of aggression causing an international armed conflict. If this “special tribunal” is created, regardless of its model, there will be strong ownership by the territorial state.
Yet – looking back to the work of the ICC in this area – upon the issuance of arrest warrants against President Vladimir Putin and Ms. Maria Lvova-Belova on March 17, 2023, the first concrete step taken by the ICC with respect to the Situation in Ukraine, Prosecutor Karim A. A. Khan KC noted the following: “Since taking up my position as Prosecutor, I have emphasised that the law must provide shelter to the most vulnerable on the front lines, and that we also must put the experiences of children in conflict at the centre of our work. To do this, we have sought to bring our work closer to communities, draw on advanced technological tools and, crucially, build innovative partnerships in support of our investigative work.” To be “closer to the communities” affected by the relevant crimes, the Prosecutor entered into arrangements with the above-mentioned Joint Investigative Teams and developed a synergic cooperation with the authorities and civil society of Ukraine, a state that accepted the jurisdiction ad hoc under Article 12(3) of the Rome Statute and has not yet ratified the treaty.
In addition to the recent developments concerning the Situation in Ukraine at the ICC, the Court has furthered the objective of bringing the work of the ICC closer to affected communities through its recent actions, such as the conclusion of new memoranda of understanding renewing cooperation towards justice in the Democratic Republic of Congo, the establishment of an in-country office in Venezuela, and an action plan for renewed cooperation with Colombian national authorities in pursuit of accountability. Moreover, over the last twenty years, local and international NGOs and legal representatives of victims have repeatedly called for a greater presence of the ICC in the field through interactive outreach and public communications, including through the application of the Statute’s provisions on in situ proceedings.
Summary of the Benefits and Risks of Creating a Hybrid Chamber at the ICC
To summarize briefly the benefits and risks of creating a hybrid chamber at the ICC, as addressed in our original article, it is first noted that, on the risks side, there is the potential for compromised justice institutions through the use of national judges at the ICC, particularly in contexts involving a high degree of political instability. For instance, the rulings of national judges could be dismissed as lacking in impartiality or, even if impeccably well-reasoned, lacking the appearance of impartiality.
There is also the potential of a “due process critique” that a judge from the same state as a defendant might be biased in favor of, or against, that defendant, depending on the political climate following atrocity crimes. Also on the risks side, hybrid chambers could come with increased costs, or a rebalancing of resources away from the ICC’s core mandate. The Court would also need to adapt to new procedures for selecting judges, which could create difficulties at the initial stages. However, on the benefits side, hybrid chambers (and courts) may allow for building a more localized ownership of the justice process and fostering the development of international human rights norms within domestic legal systems.
There are a number of additional benefits a hybrid system would provide. The integration of national judges may provide a visible and more culturally appropriate justice process, which also adheres to international human rights standards. Furthermore, there is a perceived sense of transparency and greater resistance to political interference from the use of a combination of international and national judges. Indeed, integrating national judicial actors within the ICC’s decisionmaking process could enable a form of hybrid justice while still maintaining the ICC’s international legitimacy. Moreover, a hybrid chamber within the ICC could also motivate states parties to engage more readily with the Court, incentivize non-party states to join, and accomplish the principal goal of ensuring criminal accountability.
Having a national judge take part in proceedings could indicate a greater degree of respect for state sovereignty and an institutional effort to be more representative. Also, hybrid chambers could serve to promote knowledge transfer and strengthen the capacity of domestic judicial systems through the engagement of national judges in international criminal proceedings that adhere to international standards.
Additionally, the participation of national judges could also increase the use of the language of the incident state during trials, facilitating national media coverage and making the proceedings seem closer to home for the relevant population. Finally, a hybrid chamber could create a more specialized chamber. For example, in situations where the Court has jurisdiction on the basis of the location of the respective atrocity crimes, a judge of the territorial state appointed to the bench might be expected to have special expertise in the specific language of the state in which the situation arose, in addition to cultural skills and background knowledge of the relevant state. This could help to make the hybrid chamber more focused and efficient.
In order to advance these goals and minimize the hurdles or complications that may be associated with institutional innovation, it is necessary for the states parties to the Rome Statute to elaborate a set of amendments that would empower the Assembly itself and relevant Court organs to take the necessary action in forming hybrid chambers within the ICC, when their configuration would be suitable to bring the justice process closer to the victims and the communities affected by the perpetration of international crimes.
Proposed Amendments to the Rome Statute
The practical vehicle through which amendments to the Rome Statute may best be effected to allow for the establishment of hybrid chambers within the Court is Article 122, which provides that an amendment of an institutional nature may be proposed by any state party and must then receive unanimous support or, in the absence of consensus, a two-thirds majority vote in the Assembly of States Parties (ASP) for its adoption and immediate entry into force. The latter characteristic of Article 122 makes it much more efficient and effective than the Article 121 amendment procedures, which cause “fragmentation” or diversification of jurisdictional regimes between states that have ratified amendments and states that have not ratified them. Additionally, amendments that require the ratification by seven-eighths of the states parties before entering into force (for all states), such as the 2015 amendment through which the ASP unanimously deleted the transitional provision on war crimes of Article 124 from the Statute, are essentially impossible to achieve. This is due to the fact that political momentum for the amendments’ ratification is normally missing, and the technicalities of ratification processes pose an obstacle to collective and coordinated action by such a large number of states parties. Article 122 was conceived to allow adjustments in the internal (institutional) law of the ICC, but, as of today, it has never been applied or invoked by states parties, even if a Report of the Bureau on the Study Group of Governance, published October 15, 2013, encouraged states to submit proposals pursuant to this Article at paragraph 22.
It is further recalled that Article 39 of the Rome Statute leaves the Court free to establish new Pre-Trial and Trial chambers as it deems efficient. However, these chambers are composed only of judges from the existing Pre-Trial and Trial Divisions, respectively. Article 39 could therefore be amended to allow for the creation of hybrid trial chambers in addition to ordinary trial chambers, with two judges from the corresponding division and a third judge appointed on an ad hoc basis. The required amendments must specify that one or more hybrid chambers, in addition to ordinary trial and pre-trial chambers, are permissible and should set out the appointment mechanism for judges to hybrid chambers, in addition to the service, qualifications, nomination, and election requirements regarding ad hoc judges.
As also emphasized in our original article, we note in this respect that ad hoc judges would not fall under the definition of ICC judges. The Court would also need to adopt new procedures for selecting judges. The distinct articles of Part 4 of the Rome Statute would further require amendment in certain respects in order to detail how the provisions related to service of judges (Art. 35), qualifications and nomination/election (Art. 36, but exclusively in respect of para. 8 on criteria for selection, i.e., expertise and independence of ad hoc judges, and in respect of para. 9 to outline ad hoc judges’ term of office), the organizational functions of the Presidency of the Court (Art. 38), the configuration of the Trial Division (Art. 39, para. 1, second sentence) and the composition of the Trial Division (Art. 39, para. 2(b)(ii)), removal from office (Art. 46), disciplinary measures (Art. 47), and salaries, allowances and expenses (Art. 49) would apply to ad hoc judges (appointed to hybrid chambers). Other provisions, such as those on the independence of judges (Art. 40), excusal and disqualification of judges (Art. 41), solemn undertaking (Art. 45) and privileges and immunities (Art. 48) will need to be interpreted as applicable to ad hoc judges. Finally, ad hoc judges would also need to be exclusively bound to apply the law in accordance with Article 21 (Applicable Law) of the Rome Statute (which would impede their application of domestic law outside the extremely limited boundaries of Art. 21, para. 1(c)).
How Hybridity Can Foster Domestic Reconciliation: The ECCC Example
Beyond additional consideration of the need to avoid amendments to articles of the Rome Statute that do not fall under the accelerated amendments process provided for in Article 122 of the Rome Statute, it is important to also contextualize the hybridization project more broadly, in view of the overall goal of fostering domestic stabilization and reconciliation through accountability efforts.
Regarding the importance of bringing the work of the ICC closer to affected communities, we note that any such proposal to amend the Rome Statute to create a hybrid chamber should ideally be accompanied by a campaign or mechanism to enable increased resources aimed at fostering domestic outreach activities and embedding national judges in the judicial decisionmaking work and processes of the Court.
Taking the example of the Extraordinary Chambers in the Courts of Cambodia, known as the ECCC or informally as the Khmer Rouge Tribunal, the importance of fostering domestic outreach activities is clear. The ECCC was established within the Cambodian legal system in 2006 to seek justice for the crimes committed by the Khmer Rouge regime. It has received international assistance through the United Nations Assistance to the Khmer Rouge Trials, known as UNAKRT.
The ECCC can only prosecute two categories of alleged perpetrators for alleged crimes committed between April 17, 1975, and January 6, 1979, the first being senior leaders of Democratic Kampuchea, and the second being those believed to be most responsible for grave violations of national and international law. There have been four cases at the ECCC, with the second and fourth cases severed into two and three sub-cases, respectively (Case 001: defendant Kaing Guek Eay, alias “Duch”; Case 002 (severed into Case 002/01 and Case 002/02): defendants Khieu Samphan, Noun Chea (deceased), Ieng Sary (deceased), and Ieng Thirith (deceased); Case 003: defendant Meas Muth; Case 004 (severed into Case 004/01, Case 004/02 and Case 004): defendants Yim Tith, Im Chaem, and Ao An).
To date, three individuals have been convicted and sentenced to life imprisonment by the ECCC (Kaing Guek Eav, alias “Duch” (Case 001); Nuon Chea and Khieu Samphan (Case 002)), two of whom have since passed away (Nuon Chea passed away on August 4, 2019, in the hospital at the age of ninety-three. Kaing Guek Eav was serving his sentence at Kandal Provincial Prison, Cambodia, until he passed away on September 2, 2020, in the hospital at the age of seventy-seven. The last surviving prisoner convicted by the ECCC, Khieu Samphan, has recently been transferred from the ECCC Detention Unit to Kandal Provincial Prison, to serve out his sentence, under the jurisdiction of the General Department of Prisons of the Ministry of Interior.
The ECCC has a majority of Cambodian judges in each chamber. In the Pre-Trial Chamber, there are three Cambodian judges and two international judges (with the President of the Chamber being Cambodian and there being a reserve Cambodian and a reserve international judge). In the Trial Chamber, there are three Cambodian judges and two international judges (with the President of the Chamber again being Cambodian). In the Supreme Court Chamber, there are four Cambodian judges and three international judges (with the President of the Chamber being Cambodian and there being a reserve Cambodian and a reserve international judge).
Beyond a mixed composition of judges in chambers, there are, for example, Co-Prosecutors, both international and national, Co-investigating Judges, both international and national, and mixed international and national personnel in all other areas of the court, including the Office of Administration, the Defence Support Section, Victims Support Section, and there is also one Cambodian and one international Civil Party Lead Co-Lawyer.
Many commentators in the international justice realm have noted that the ECCC has experienced high levels of acceptance and support in its communities. Compared to domestic courts, it has also arguably demonstrated greater transparency and resistance to political interference. It has achieved a high degree of public attendance and victim engagement in trial proceedings. Through its Public Affairs Section, for example, it has hosted a weekly radio program, and a broader outreach program, and generated a high level of domestic media coverage. The ECCC also made great advances in interpretation and transcription of its three working languages (namely, English, French, and Khmer). To give just one example of this, the trial judgment in Case 002/02 stands at 2,259 pages in length and was issued in English, French, and Khmer.
The survey results of a recent study undertaken this year by the court show that the tour program organized by the ECCC as part of its public outreach is relevant for imparting knowledge to younger generations. According to most respondents, the ECCC study tours provided additional knowledge of the trial of Khmer Rouge senior leaders and the history of the Khmer Rouge regime – including through presentations by relevant officials and visits to Toul Sleng Genocide Museum, the Cheong Ek Genocide Centre, and Win Win Memorial. These results came from a survey that was conducted online by the court from February 15 to April 6, 2023, open to individuals who had participated in the ECCC study tour program. From February 15 to April 6, 2023, there were 3,430 youth, students, and teachers who had participated in the study tours organized by the court. 1,527 people responded to the online survey.
This focus on public awareness and engagement by the court is significant. The mandate of the Public Affairs Section prompts us to reflect on broader questions related to the role of capacity-building in a post-conflict society and how hybrid justice can help to develop a sense of local ownership of the justice process, while also leaving impacts for future generations to come. At the ECCC, officials routinely visit remote provinces and speak to members of the public, including school children, about the work of the court, distributing information materials about the ECCC and taking questions from students and the public about the court proceedings.
This aspect of the work of the court may be powerfully described with the notion of “justice under a tree.” The proposal to create a hybrid chamber within the ICC is based to an extent on the idea that hybrid forms of justice can help to develop a sense of local ownership of the justice process, leaving impacts for generations to come. The idea of “justice under a tree” is one which can be used to draw an analogy to the notion that hybrid justice and hybrid courts are often viewed as providing a more visible and culturally appropriate justice process that adheres to international human rights standards.
The concept comes from traditional African societies: under the tree is where people would meet to resolve disputes. For instance, with respect to the Constitutional Court of South Africa, the logo of the court depicts people sheltering under a canopy of branches, a representation of the court’s protective role and of the theme of justice under a tree. This logo reveals the ethos and culture of the court as a source of protection for all, as well as the Constitution’s historical roots in South Africa in terms of the struggle for human rights, infused with the spirit of a new democracy. Indeed, the Constitutional Court was borne not from clichéd images of the scales of justice and Roman columns. Rather, the symbol chosen for the court’s logo was the tree – something that protects, just like the Constitution. However, the tree does not stand alone in the logo. It is sheltering people who have gathered under its branches.
Standing outside, under trees, in school playgrounds in rural settings, public outreach missions in Cambodia may be said to have brought a sense of “bringing the law home” to affected communities, thereby further ensuring truth-telling in terms of historical record and teaching future generations to be attuned to the early warning signs of genocide and atrocity crimes. This may be considered as an extended form of “justice under a tree,” ensuring that justice is both visible and community-based.
Therefore, the proposal to amend the Rome Statute of the ICC to create a hybrid chamber within the Court with a composition of national and international judges may be viewed as one way of bringing the law one step closer to the communities affected by the work of the Court.
In order to achieve this result, it would be essential for the Assembly of States Parties to the Rome Statute to fulfill its legislative responsibility and make use of the provisions of Article 122 of the Statute, empowering a qualified majority of two-thirds to reform and modernize the internal judicial infrastructure of the Court and, ultimately, increase its impact, performance, and effectiveness.
This reform must be accompanied by concurrent efforts to increase the public outreach efforts of the Court and the accessibility of the only permanent international criminal tribunal, the ICC, for victims, including survivors. Therefore, such a proposal should ideally be accompanied by a campaign or mechanism to enable increased resources aimed at fostering domestic outreach activities, alongside embedding national judges in the judicial decisionmaking work and processes of the Court. The overarching question which we should always remain focused on is: how do we best produce positive results for affected communities?
[1] See generally Clarence Wilfred Jenks, The Proper Law of International Organisations (1962).
*David Donat Cattin is an Adjunct Associate Professor of International Law, Center for Global Affairs, NYU; Research Fellow, Center for International Law Research & Policy (www.cilrap.org/donat-cattin/); and Senior Fellow, Montreal Institute for Genocide and Human Rights Studies at Concordia University.
**Philippa Greer is the Head of the Legal Office of the United Nations Relief and Works Agency for Palestine Refugees in the Near East, Gaza Strip. She previously served as a legal adviser at the United Nations in Afghanistan, Jerusalem, Cambodia and Tanzania and worked at the UN Secretariat in New York. The views expressed herein are those of the author alone and do not necessarily reflect the views of the United Nations. Philippa tweets @philippa_bear.