Chapter 13. Internationalisation, Consultation and Local
B. Internationalisation vs. Ownership: Internationalising the
The presence of international experts is thus regularly a necessary step towards judicial reconstruction, but the participation of local actors through consulta- tion and meaningful involvement remains indispensable. This delicate balance between internationalisation and relying only on local capacity is perhaps one of the most obvious differences in the UN-led international administrations and the ‘light footprint’ approach. In the first scenario, despite early assumptions that relying on local staff only would be more beneficial for the reconstruction process, international staff were gradually inserted into the judicial structures, mainly in an effort to improve respect for the rule of law and the ensure the correct application of human rights law.
The ‘internationalisation’ of domestic courts, by which we mean the partici- pation of international judges and/or prosecutors in purely domestic courts, is a recent trend in international law and has emerged from the experiences in Kosovo and East Timor. Prior to UNMIK, international judges and prosecutors had been employed only in the International Criminal Tribunals for the Former Yugoslavia and Rwanda. Courts and tribunals have since been ‘internationalised’
in Cambodia, Sierra Leone and Lebanon. The appointment of international judges and prosecutors in peace-building missions and international administra- tions therefore set a precedent of what has been referred to as ‘hybrid’, ‘mixed’
or ‘internationalised’ courts or tribunals,1255 composed of both local and inter- national judges, as opposed to national and international courts and tribunals, respectively composed of local and international judges only. The concern to create exclusively local institutions has to be weighed against the creation of an effective and sustainable judicial system. Although local ownership is important,
1255 See on the emergence of ‘hybrid’ or ‘internationalized’ criminal courts: Romano, C. and Boutruche, T., ‘Tribunaux pénaux internationalisés: état des lieux d’une justice “hybride” ’, 107 Revue Générale de Droit International Public 109 (2003); Boutruche, T., ‘Les tribunaux pénaux internationalisés ou l’émergence d’un modèle de justice hybride’, Jusletter (2002) and Romano, C. P. R., Nollkaemper, A. and Kleffner, J. K. (eds.), Internationalized Criminal Courts:
Sierra Leone, East Timor, Kosovo and Cambodia (Oxford: Oxford University Press, 2004).
transferring full authority to the local institutions should be evaluated with caution, as the main aim is to establish workable structures in the long term.1256 Additional training and the presence of international experts to assist local actors should therefore not be seen as an obstruction to local ownership of the recon- struction process, but as a means of facilitating a fully functioning and lasting judiciary. Nevertheless, although international judges are experts in international law or their own national legal systems, they often lack the necessary familiarity with the applicable local law. Equally, language barriers, necessarily implying the translation of domestic laws and the presence of interpreters at court hearings, hamper the extensive deployment of international judges.
The appointment of international judges and prosecutors nevertheless serves several purposes. First, they can ensure the correct application of international law, and particularly human rights law and the basic principles of due process,1257 thus filling the gap until local judges have undertaken sufficient training. Inter- national judges therefore also serve as ‘examples’ and mentors to their local colleagues.1258 This is especially true in the case of insufficient number of judges and prosecutors who, in addition, have been lost to the judicial system for many years. Appointing international magistrates can therefore be used as a training method for newly appointed judges and prosecutors, who often, have never before undertaken these functions.1259 However, the heavy costs related to the hybridisation of national courts and tribunals, and the short-term availability of international actors have severely weighed down the reconstruction process.
The presence of such actors is thus valuable, especially with regard to the afore- mentioned need to ensure respect for human rights and fair trial principles, but two conditions need to be fulfilled. International actors need to be appointed for longer terms and need to have certain qualifications, such as extensive experience in their field. In addition, the necessary funding needs to be provided to ensure a certain level of internationalisation to avoid such situations as occurred in East Timor where the international panels were frequently unable to sit because of the unavailability of international judges.
The ‘internationalisation’ of the domestic courts and tribunals in the cases under consideration has served the various purposes described above. UNMIK decided to introduce international judges and prosecutors after several months of trying to rely solely on local capacity. The effectiveness of the internationalisa-
1256 Brandt, M., ‘International Intervention and Post-Conflict Reconstruction I: Capacity Building and training in post-conflict countries’, in Azimi, Fuller and Nakayama, supra note 85.
1257 Cassesse, A., ‘The Role of Internationalized Criminal Courts and Tribunals in the Fight Against International Criminality’, in Romano, Nollkaemper and Kleffner, supra note 1255, p. 6.
1258 See also Betts, Carlson and Gisvold, supra note 851.
1259 Cassesse, A., ‘The Role of Internationalized Criminal Courts and Tribunals in the Fight Against International Criminality’, in Romano, Nollkaemper and Kleffner, supra note 1255, p. 6.
tion of the Kosovo courts and tribunals has however been described as marginal, as their contribution to the training of local judges was limited due to their appointment on a case-by-case basis.1260 Nevertheless, others have stressed the efficient support provided by international judges and prosecutors in handling sensitive cases1261 which, without their presence, could have undermined the rule of law in the territory, and therefore destabilised the already fragile peace process. Their presence equally halted the perceived ethnic bias of the judiciary, and restored the perception of an independent and functioning one.1262
As in Kosovo, no international judges or prosecutors were initially appointed in East Timor, as the focus was on the creation of exclusively Timorese institu- tions. The appointment of local judges was seen as a symbolic step towards a long-awaited self-determination and self-government, and was seen as neces- sary to avoid the future disruption of the judiciary after the withdrawal of the international judges.1263 Practical concerns, such as the urgency in reviewing the detention of suspects by INTERFET after the dissolution of the Deten- tion Management Unit and the unavailability of international jurists, seem to have influenced this policy.1264 The necessity of focussing on building an East Timorese judiciary was also expressed by the Secretary-General in his October 1999 report, in which the Secretary-General asked to recruit professionals from among the East Timorese to the largest extent possible.1265 However, this quite rapidly became unsustainable, given the limited availability of qualified judges and prosecutors. In addition, the failure of the judiciary to re-establish the rule of law has led to criticism of the choice of this policy. Despite the clear
1260 OSCE Mission in Kosovo – Legal Systems Monitoring Section, ‘Kosovo: Review of the criminal justice system 1999–2005 – Reforms and residual concerns’ (March 2006), pp.
66–67; Cerone, J. and Baldwin, C., ‘Explaining and Evaluating the UNMIK Court System’, in Romano, Nollkaemper and Kleffner, supra note 1255, p. 52 and Shraga, D. ‘The Second Generation UN-Based Tribunals: A Diversity of Mixed Jurisdiction’, in Romano, Nollkaemper and Kleffner, supra note 1255, p. 34.
1261 Cerone, J. and Baldwin, C., ‘Explaining and Evaluating the UNMIK Court System’, in Romano, Nollkaemper and Kleffner, supra note 1255, p. 52.
1262 Perriello, T. and Wierda, M., ‘Lessons from the Deployment of International Judges and Pros- ecutors in Kosovo’, International Centre for Transitional Justice (March 2006), pp. 31–32.
1263 On the rationale behind the ‘Timorization’ of the judiciary, see the various contributions of Strohmeyer who was subsequently Acting Principal Legal Advisor and Deputy Principal Legal Advisor to UNTAET from October 1999 until June 2000. Strohmeyer was had previ- ously worked as Legal Advisor to UNMIK, and participated in UNTAC. See in particular Strohmeyer, H., ‘Building a New Judiciary for East Timor: Challenges of a Fledgling Nation’, 11 Criminal Law Forum 259 (2000), p. 262 and Strohmeyer, supra note 884, p. 177. See also Beauvais, supra note 1050, pp. 1155–1156.
1264 Katzenstein, S., ‘Hybrid Tribunals: Searching for Justice in East Timor’, 16 Harvard Human Rights Journal 245 (2003), p. 255.
1265 Report of the Secretary-General, UN Doc. S/1999/1024, supra note 310, para. 51.
policy decision to rely on local capacity only, a decision was eventually made to introduce international judges and prosecutors for a limited number of crimes, mainly past crimes. It has been argued that the alternative approach, consist- ing of introducing international judges and prosecutors from the start with the appointment of East Timorese judges and prosecutors as deputies, could have avoided many difficulties the judiciary faced in the early years.1266 The outcome of a research project, funded by four major donors to peace-building operations, confirmed this criticism. The researchers argued that “while the symbolic value of an indigenous judiciary was a worthy aspiration, this should not have overrid- den the immediate demands of the situation which were to create an emergency judicial regime”.1267 However, this assessment and critique can be made only with hindsight, and only emphasises the need for the availability of international experts to be deployed rapidly in these kinds of civilian operations.1268
In spite of the growing tendency to create internationalised courts and tribu- nals, no international judges and prosecutors have been appointed in Afghanistan as a result of the ‘light footprint’ approach. The main aim of the UN’s pres- ence was to assist in the implementation of the Bonn Agreement. The Special Representative of the Secretary-General in Afghanistan, Lakhdar Brahimi, who favoured this approach, relied on the assumption that the reconstruction of the judiciary could be viable only if the process was led by Afghans.1269 This policy was in complete contrast to the experience in Kosovo and East Timor, where the actors involved recognised the urgency of creating an environment with respect for the rule of law. Considering the weakness of the judiciary in Afghanistan, as well as the unavailability of sufficient competent judges and prosecutors, the arguments for relying upon a purely Afghan judiciary were highly questionable.1270 Similar reasoning was used with regard to the reconstruction process in Iraq.
The continuing malfunctioning of the judiciary with regard to the implementa- tion of human rights could equally have been prevented by the introduction of international experts into the judicial system. As mentioned, the possibility of introducing international judges into the judiciary was only raised by some with
1266 Linton, supra note 414, p. 134. See also Katzenstein, supra note 1264, p. 256.
1267 Dahrendorf et al., supra note 496, para. 241.
1268 Cf. para. 145, Brahimi Report, supra note 175.
1269 See ‘Address of Mr. Lakhdar Brahimi, Special Representative of the Secretary-General for Afghanistan’, Conference of Rome on Justice in Afghanistan (19 December 2002).
1270 Chesterman, supra note 104, p. 179. See also on a proposal for the creation of mixed tribunals in Afghanistan: Dickinson, L., ‘Transitional Justice in Afghanistan: The Promise of Mixed Tribunals’, 31 Denver Journal of International Law and Policy 23 (2002–2003); Amnesty Inter- national, ‘Afghanistan: Addressing the past to secure the future’, Report n° ASA 11/003/2005 (7 April 2005) and Human Rights Watch, ‘Blood-Stained Hands: Past Atrocities in Kabul and Afghanistan’s Legacy of Impunity’ (2005).
regard to the Iraqi Special Tribunal, charged with the trial of Saddam Hussein.1271 The law regarding the Iraqi Special Tribunal did not, however, permit the mixed composition of the tribunal, but allowed for the possibility of appointing inter- national judges only after approval by the Iraqi Governing Council.1272
A second, and complementary, area in which the equilibrium between inter- nationalisation and ownership is difficult to maintain is the applicable law. The various issues which have arisen with respect to the definition of the applicable law, and more specifically, with regard to the interpretation of the laws in light of human rights standards have been a severe impediment in the reconstruc- tion of the judiciary in many cases. In theory, various alternatives could have been chosen by international actors, although very often practical issues, such as staffing, are more likely to influence the decision than concerns of efficiency.
The question was often raised how human rights, and in particular the essential trial-related human rights, could best be introduced into a post-conflict environ- ment. In Kosovo, East Timor and Afghanistan the choice was made to rely in the first place on the existing codes but applied though a human rights lens, while at the same time starting the process of drafting a new code.
The difficulty of the exercise and the lessons learned from judicial recon- struction led to one of the most tangible results of these recent reconstruction missions, namely the proposal to elaborate a model code of criminal law, the so-called ‘Brahimi code’, named after the proposal made by the Panel on United Nations Peace Operations chaired by Lakhdar Brahimi. The report of the Panel recommended the Secretary-General to “invite a panel of international legal experts, including individuals with experience in United Nations operations that have transitional administration mandates, to evaluate the feasibility and util- ity of developing an interim criminal code, including any regional adaptations potentially required, for use by such operations pending the re-establishment of local rule of law and local law enforcement capacity”.1273 The United States Institute of Peace recently published the model criminal code and the model code for criminal procedure as part of its ‘Model Codes for Post-Conflict Criminal Justice Project’ launched in 2001, with the Irish Centre for Human Rights, the Office of the UN High Commissioner for Human Rights and the UN Office on Drugs and Crime.
The four cases examined do prove the necessity to at least consider the appli- cation of such interim criminal codes.1274 The question is, however, whether
1271 See supra note 1089.
1272 CPA Order Number 48, ‘Delegation of Authority Regarding an Iraqi Special Tribunal’, CPA/
ORD/9 Dec 2003/48 (9 December 2003), Section 2.
1273 Para. 83, Brahimi Report, supra note 175.
1274 See Fairlie, supra note 418. See for a proposal in the context of economic reconstruction:
Valdevieso and Lopez-Mejia, supra note 607. The authors argue that an “[e]arly adoption of
this exercise is useful. It seems to overlook the fact that it will require a major input from international judges and prosecutors from the start, while often the necessary instruments are available but need to be revised in accordance with human rights standards. It would not, in our view, eradicate the problems engendered by post-conflict situations. Such a solution might however be used as an interim measure, and complement the review of existing legislation. It seems more appropriate to rely on the immediate creation of a law review or reform commission, which would be in charge of the review of existing legislation in light of human rights standards and of the compilation and identification of the applicable laws.1275 This technique, however, does not exempt the administra- tion in place to define the legal framework, which, as seen in Kosovo, can be a sensitive issue. The advantages of such a commission are evident, and could have boosted respect for the rule of law in the cases examined. However, this is of course easy to argue in retrospect, and we acknowledge the difficult circum- stances in which the various missions had to operate. In addition, the practical problems relating to the implementation of such a commission are obvious, as it would require the availability of both international experts, familiar with the local laws, and a translated set of applicable laws, and the presence of national experts familiar with the local laws.
a basic and easily enforceable legal and regulatory framework helps to reduce uncertainty. The framework must be simple but sufficiently comprehensive to minimize the scope for discretion in its applicability”.
1275 See for a proposal on the creation of such a commission in East Timor: Morrow and White, supra note 390, p. 10.
International Administration, the Light Footprint and Beyond
Although the level of UN participation in these cases was very different, the components of the reconstruction process were largely identical. The powers entrusted to the UN in the case of Kosovo and East Timor were manifestly far more comprehensive than in Afghanistan or Iraq. The Afghan light-footprint approach encompassed a very limited mandate for the UN, but the Bonn Agreement and its annexes nevertheless revealed many similarities with the reconstruction process in the other cases. The same is true for the reconstruc- tion process in Iraq, where the first phase resembled that in Kosovo and East Timor, while the second stage, after the dissolution of the CPA, was very similar to the Afghan scenario.
The nature of authority will of course directly influence the capacity of the actors to engage in the reconstruction process. It is in particular the exercise of vast administrative powers by unelected international administrations which has been the subject of many criticisms of their ‘autocratic’ character.1276 However, although such a critique is founded on the inherent paradox between the means and the ends of international administration, condemning the autocratic nature of international administrations does not take into account the context of these missions, or the practical consequences of one approach as opposed to the other in terms of achieving the objectives of post-conflict reconstruction. From a legal point of view however, such as critique is unfounded. As noted in a previous chapter, the granting of administrative powers to international actors is not only in conformity with the UN Charter, it can be argued that it also does not violate other international legal rules, such as that of self-determination.
There are nevertheless inherent problems associated with these types of admin- istrations and missions. The question of centralising executive and legislative
1276 See e.g. Chopra, supra note 10; Beauvais, supra note 1050 and Ombudsperson Institution in Kosovo, ‘Fourth Annual Report 2003–2004’ (12 July 2004).