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The Fraying Shoestring: Rethinking Hybrid War Crimes Tribunals

Cockayne, James

2004

Volume: 28 Issue: 3
Fordham International Law Journal

Abstract

This Article looks in detail at whether the Special Court is, at present, succeeding or failing, drawing lessons along the way both for the system of international criminal justice generally, and more specifically for U.N. enforcement of the law of war. In Section II, this Article suggests a method for measuring success and failure in an international criminal tribunal. It suggests that there are a number of identifiable performance standards which should guide our assessment, each linked to a stakeholder group: the international community, the affected population, and the defendants. In Sections III-V, this Article assesses the Special Court’s early performance from the perspective of each of these stakeholder groups, against these performance standards. In Section VI, it assesses the implications of these trends, suggests ways that negative consequences might be avoided or at least minimized, and points to longer-term implications, particularly for the U.N. involvement in the enforcement of the law of war. This Article concludes that a hybrid tribunal, like the Special Court, engages with a range of dynamics affecting the humanitarian community and complex peace operations that the ad hoc tribunals have avoided, but which produce unexpected effects in the context of criminal justice. Those dynamics are not presently taken into account either in the design and resourcing of the Special Court, or in stakeholders’ expectations of what it can achieve. Careful consideration of these challenges is required lest “hybrid” tribunals upend the maxim “no peace without justice,” preventing peace by pursuing justice.


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