Editorial note: This article is part of a series of blog posts on critical subject-matters for the progressive development and codification of International Criminal Law.

By: David Donat-Cattin[1] and Philippa Greer[2]*

Introduction

The International Criminal Court (“ICC”) has investigated and tried some of the world’s gravest atrocities, establishing itself as a beacon in the global fight to end impunity. However, the ICC has also been criticized for its perceived lack of effectiveness, efficiency, uniformity in its jurisprudence and—above all—its prosecutorial selection of situations and cases, as well as its approach to respect for national sovereignty. Some states, it seems, do not want their nationals tried before a body composed only of international judges, an international prosecutor, and international legal practitioners and civil servants. The individual organs of the ICC and its personnel have often been mistakenly characterized as foreign and potentially hostile actors. But what if it were possible for the ICC to integrate national judicial actors within its decision-making process, while still maintaining its international legitimacy? The creation of a hybrid chamber might allow the ICC to do just that.

Amending the Rome Statute to create a hybrid chamber would be the first step to cope with this reality. This is an idea originally articulated by ICC Judge Chung in an academic speech—and subsequently researched and developed with the help of students from Harvard Law School’s Advocates for Human Rights. A number of organizations, including Parliamentarians for Global Action, and advocates, have started to analyze the feasibility of this option.

Background: What is a Hybrid Chamber?

Hybrid chambers are those which have both domestic and international judges. Currently, however, all of the ICC’s chambers—Pre-Trial, Trial, and Appellant—are composed exclusively of international judges. That being said, hybrid chambers have been used, and are in use, in many contexts. Several of the most prominent international, or quasi-international, criminal tribunals and mechanisms—such as the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) and the Special Court for Sierra Leone (“SCSL”)—have been constituted as hybrid chambers; and several noncriminal international courts, such as the International Court of Justice (“ICJ”) and the Inter-American Court of Human Rights, allow for ad hoc judges in a manner that could be partially followed by the ICC to create a hybrid chamber. It is noted in this context that use of the term “hybrid chamber” reflects the institution of a chamber comprising of ad hoc judges in addition to the international judges constituting the ICC’s chambers. From a public international law viewpoint, such a chamber may not be classically referred to as a true “hybrid chamber,” in the same manner in which the ICJ’s integration of an ad hoc judge by each of the parties to a controversy or dispute does not categorize it as a hybrid judicial chamber.

Risks

There are several risks presented by the use a hybrid chamber that must be considered. First, a hybrid chamber might open the Court to the 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. This critique could be mitigated by Articles 36(3)(a) or 41(2)(b) of the Rome Statute, which provide that “judges shall be chosen from among persons of high moral character, impartiality and integrity,” and permit the Prosecutor to “request the disqualification of a judge [if their impartiality might be in doubt],” respectively.

In instances where a defendant might argue that having a national judge is likely to result in bias against them, particularly if the judge is appointed by a new government following elections or regime change, Article 41(2)(b) of the Rome Statute offers recourse given that “the person being investigated or prosecuted may request the disqualification of a [j]udge” for lack of impartiality.

Additionally, the disjuncture between the inherently international nature of the ICC and the domestic dimension of the international atrocities involved could give rise to the perception that justice is being provided overall by outsiders, whose external views may be irreconcilable with those from domestic communities. The fact that a hybrid chamber within the ICC would be practically embedded within the broader international structure of the Court presents a unique circumstance when one considers that the structure of hybrid international criminal tribunals and mechanisms typically comprise of organs staffed by national counterparts to international staff, beyond the judicial chambers themselves.

Further, 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. These problems, especially in light of contemporary critiques of the ICC and of hybrid tribunals and mechanisms more broadly, might cause certain states parties to mistakenly perceive the institution as having become partially ineffective.

Benefits

Despite these risks, allowing for hybrid chambers in the ICC could yield several significant benefits. Most notably, this could motivate states parties to engage more readily with the Court, incentivize nonparty states to join, and accomplish the principal goal of ensuring criminal accountability.

First, hybrid chambers could help to rectify perceived failings and encourage new engagement or reengagement with the ICC. Having a national judge take part in proceedings would indicate a greater degree of respect for state sovereignty and an institutional effort to be more representative—two areas in which the Court has been falsely accused of lacking, despite its principle of complementarity. It could also 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. Efforts to respect sovereignty, increase representation among judges, and stem perceived biases in case selection could also give states parties an incentive to “submit” individuals to the ICC and to refer situations to the jurisdiction of the ICC that would include a hybrid chamber. The latter point is of particular importance given that the ICC entirely relies on the cooperation of states parties to the Rome Statute and to the United Nations (“UN”) Charter in order to carry out arrest warrants. Indeed, over a decade since the ICC issued a warrant for Omar al-Bashir regarding the atrocities in Darfur, recent developments suggest that he may be transferred to the ICC by the Sudanese government on the condition that possible prosecution proceeds in situ in Khartoum, rather than The Hague, or in a hybrid ICC/Sudanese chamber.

A hybrid chamber within the ICC could also help “to guarantee lasting respect for and the enforcement of international justice,” and advance key institutional features. For instance, the participation of national judges could 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. The participation of national judges at the ICC might also curtail suggestions that the Court subordinates domestic reconciliation in favor of international prosecution.

Moreover, a hybrid chamber could help to reinforce domestic systems by further encouraging national judges that might one day be called to sit in the chamber to enhance their expertise. Given the increased possibility of serving at the ICC, judges from various jurisdictions would have an increased incentive to engage with the international legal system, and to develop professional networks that would facilitate the exchange of ideas, in addition to studying and advancing their knowledge of international criminal law. This also aligns with the principle of “positive” complementarity espoused by the ICC.

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 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. Such specification could help to make the hybrid chamber more focused and efficient. In situations where the Court’s jurisdiction stems from the nationality of the suspect, but not the territory where the alleged crimes took place, having a national judge from the state of the accused’s nationality serving on the hybrid bench could similarly foster greater insight and specialization within the chamber. However, this second scenario appears rather unlikely from a practical standpoint, as the consistent practice of the Office of the Prosecutor (“Prosecutor”) has thus far oriented the selection of situations and cases on the basis of a preexisting territorial jurisdiction of the ICC, which allows the Prosecutor to identify multiple alleged perpetrators, regardless of their nationality, including those allegedly bearing the greatest responsibility for the most serious crimes committed in a given situation.

Logistics

Given the ICC’s three judicial divisions: Pre-Trial (three judges), Trial (three judges), and Appeal (five judges), it is important to consider the practical positioning of the proposed hybrid chamber. It is proposed that the hybrid chamber would come into play at the Pre-Trial stage and, above all, Trial stage, and would mirror the chambers’ respective composition with three judges. Only one ad hoc national judge would be appointed, while the other two judges could be appointed from among the permanent judges of the ICC. In contrast to the ECCC model of having a majority of national judges, this proposal adopts the structure of the relatively successful East Timor and SCSL hybrid tribunals. This is largely because of the challenges and costs of recruiting and funding multiple ad hoc judges. It is also in line with the Rome Statute, which discusses representation and forbids having more than one judge with the same nationality employed at the ICC at once.

The traditional selection of judges at the ICC is governed by Article 36 of the Rome Statute. In brief, Article 36 provides for a minimum of 18 judges “chosen from among persons of high moral character, impartiality and integrity,” who may be nominated by any state party to the Rome Statute, and subsequently elected by a two-thirds majority of the Assembly of State Parties (“ASP”). Following the traditional process could bolster the legitimacy of a hybrid chamber, and would require relatively few logistical adjustments. For hybrid chambers, national judges could be elected via a slightly modified method in which states parties could only nominate candidates from the relevant state. This process could be assisted by a specific mandate of an Advisory Committee on Nomination, set up by the ASP pursuant to Article 36, Rome Statute. Such a mandate could be conferred by the ASP Bureau on behalf of the entire Assembly.

While the traditional process creates transparency at the election stage, the nomination process has been criticized for enabling possible nepotism and politicization. Such risks are heightened when the pool of candidates at the nomination level is limited to those from one state. However, this risk could be mitigated, for example, by requiring that candidates meet national standards for eligibility that accord with international standards, demonstrate professional competence through writing samples, and pass a conflict of interest check. States should also be required to publish their calls for candidates and to nominate at least three eligible candidates, similar to the regulation on nominations for the Judges of the European Court of Human Rights (“ECtHR”).

The most common practice in hybrid tribunals has been for national judges to be appointed unilaterally by the implicated state, with relatively little insight into the decision. This would likely be the most politically palatable method for appointing ad hoc national judges at the ICC. To ensure transparency, legal expertise, and judicial independence, this method could be modified to require that the implicated state party adhere to the requirements of Article 36 of the Rome Statute in making their selection, and that they submit to the ASP at least three eligible national candidates on the basis of a Public Call for Applications, similar to the procedure that member states of the Council of Europe undertake for judicial nominations to the ECtHR.

The national judges for a hybrid chamber at the ICC could alternatively be selected on an ad hoc basis through current ICC judges’ selection, through a UN body appointment or through the ASP. Selection by ICC judges would see a committee of sitting judges at the ICC carry out a search and vetting process. One advantage of this selection process is that it would likely result in highly competent judges entering the chamber, since ICC judges are among the best-positioned actors to assess whether a potential candidate is qualified to serve in a hybrid judicial chamber. This method would potentially also avoid some of the politicization ingrained in the traditional ASP election process. In doing so, it could help ensure the independence of the judiciary. This would be particularly true with regard to the incident state, where there may be a risk of political interference in the selection of judges. Yet from the point of view of citizens of the implicated state, as well as civil society actors and states, appointment by ICC judges might appear insular. In order to address such concerns, ICC judges could accept nominations or applications, publicize vacancies and the search process, and enumerate selection criteria, among other measures to ensure a competitive and transparent process. However, ICC judges might still face limited resources in terms of time, support staff, and relevant funding.

Appointment by a UN organ would depend on the particular UN organ appointing the judge. The process could range from appointments made at the discretion of the Secretary-General, such as, to some extent, in the ECCC, to appointments by vote of the General Assembly, with appointments by special committees falling somewhere in between. One advantage of this method is that the UN’s prominence in the public eye creates potential for accountability, and the institution would likely continue its long-term efforts to achieve diversity and gender parity, and other legitimating values. However, appointment by a UN organ might pose many of the same challenges to transparency as selection by ICC judges, while appointment by the General Assembly could see politicization become an even greater issue than in the case of traditional ASP elections.

Methods for the Creation of a Hybrid Chamber

The Rome Statute recognizes the importance of holding judicial proceedings in a manner that may bridge the distance-gap between The Hague and the locus commissi delicti, in the proximities of which normally most victims, including survivors, witnesses, and perpetrators may be found (unless the underlying international crimes were characterized by deportation and forcible transfer of the population, or were accompanied or followed by a mass exodus of refugees or asylum seekers). In Article 3, the Rome Statute empowers the Court to sit elsewhere than in The Hague, and in Article 4, the Statute stipulates that “the Court may exercise its functions and powers, as provided for in the Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.”

The above provisions provide a solid legal basis for the establishment of chambers, especially Trial Chambers, that may integrate ad hoc Judges and receive assistance from expert personnel to transfer to the ICC the necessary knowledge and ability to exercise its functions in any given territorial state in a meaningful and legitimate way. However, in order to give full effect to the letter and spirit of the extremely important norms of Articles 3(3) and 4(2) of the Rome Statute, there would be a need to make some institutional and procedural adjustments to the ICC normative framework in order to incorporate the sui generis judicial function to be exercised by ad hoc judges.

The main purpose of having an ad hoc judge in a given situation and case would be to ensure that the ICC would have all know-how and ability to interact with domestic authorities in charge of hosting an ICC Chamber of their territories “as if” it were an organ of the domestic jurisdiction (e.g., a High Court with competence on criminal matters) and, above all, to acquire the best possible level of experience and expertise to exercise its functions on the territory of any state party (or other state), regardless of the decision to conduct part of the proceedings in loco.

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 Pre-Trial and Trial divisions, respectively, all of whom are appointed to nine-year terms in accordance with Article 36. As this is not compatible with the goals of a hybrid chamber that appoints judges on an ad hoc basis (since ad hoc judges would not be ICC judges stricto sensu), it is likely not possible to create a hybrid chamber without amending the Rome Statute. As per Article 122, an amendment of an institutional nature can 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 ASP for its adoption and immediate entry into force.

While a detailed analysis of the language of such amendments falls outwith the scope of this article, it is suggested that Article 39 should 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. It should specify that multiple 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.

Since ad hoc judges would not fall under the definition of ICC judges, textual modifications to the Rome Statute at Article 34(b), Article 35(1) and (2) and Article 37(1) would not be necessary, since there would be no need to clarify that the respective divisions may include ad hoc judges, that “full-time” service may mean service on only one case, or to exclude vacancies created by the departure of an ad hoc judge. However, the distinct Articles of Part 4 of the Rome Statute would require amendment in certain respects in order to detail how the provisions related to the independence of judges (Article 40), excusal and disqualification of judges (Article 41), solemn undertaking (Article 45), removal from office (Article 46), disciplinary measures (Article 47), privileges and immunities (Article 48) and salaries, allowances and expenses (Article 49) would apply to ad hoc judges appointed to hybrid chambers. Critical to the principle of legality before the ICC, 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 them to apply domestic law. Additional modifications to the ICC normative framework may be undertaken in respect of the Rules of Procedure and Evidence and the Regulations of the Court.

Conclusion

Creating a hybrid chamber will necessitate several amendments to the Rome Statute, which will require significant political will. That being said, given a hybrid chamber’s potential ability to increase perceived legitimacy without major practical drawbacks, the idea is certainly worth considering.

[1] Secretary-General, Parliamentarians for Global Action; Adjunct Professor of International Law, Center for Global Affairs, New York University.

[2] Legal Officer, United Nations. The views expressed herein are those of the author alone and do not reflect the views of the United Nations.

* The authors would also like to thank Juan Pablo Calderón-Meza, Romina Morello, and Sondra Anton for their editorial assistance to this project, as well as Harvard Law School students who contributed to the drafting and research of this blog: Matthew Farrell, Nicolas Luongo, Samantha Lint, Emma Broches, Celeste Kmiotek, and Jung Min (Jasmine) Shin.