Hybrid court resilience and the selection of cases

Abstract

The article explores the extent to which the resilience of hybrid courts is impacted by their selection of cases. It proceeds from the observation that the cases pursued by hybrid institutions are the result of choice under constraints. The article examines the identity of the case-choosers and the relevance of such choices for the internal and external resilience of hybrid courts. The research reveals the need to distinguish between case selection by the drafters and case selection by court authorities in the context of each institution and the tensions between these two sets of practices. These tensions are examined in the context of four hybrid institutions. The Office of the Prosecutor at the Special Court for Sierra Leone enjoyed a relatively broad measure of discretion in terms of case selection. However, the Extraordinary African Chambers, the Cambodia Chambers and the Kosovo Specialist Chambers seem to have been established with specific accused in mind. The article argues that resilience considerations are probably relevant in instances of case selection by the court officers, albeit they are context sensitive and may vary over time. Case selection prior to the establishment of a court and/or by political stakeholders, on the other hand, is ill-suited for analysis using internal resilience and arguably fall outside its scope of application. For these cases, the research argues that the discussion requires re-orientation with emphasis shifted to concepts such as contribution to national reconciliation as opposed to resistance to external pressure.

Imagining Resilient Courts: from COVID-19 to the Future of Canada’s Court System

“…Other recent scholarship has discussed court resilience in the transitional justice context. The Leiden Journal of International Law , for instance, published a special symposium issue that considered the resilience of hybrid tribunals in post-conflict societies ( Ainley and Kersten 2020 ; Fichtelberg 2020 ; McCaffrie 2020 ; Vagias 2020 ; Wiebelhaus-Brahm 2020 ). Similarly, Kastner (2020) contemplates how a resilience framing might lend itself to transitional justice.…”