Since Russia’s invasion of Ukraine began, there have been calls for war crimes to be prosecuted in international courts, and gathering evidence for future tribunals has been a key objective of investigators.
Calling for prosecution in such cases is not a matter of settling scores, but rather a “fundamental aspect of attaining peace” in a country that has experienced war, according to Charles Adeogun-Phillips, a lawyer who worked as a lead prosecutor at the United Nations International Criminal Tribunal for Rwanda between 1998 and 2010. Since then, the London-born Nigerian has returned to private practice but continued working on fiendishly difficult and sensitive topics including human rights and war crimes.
Now, as a result of Adeogun-Phillips’ career-long observations, he is advocating for the increased use of hybrid local and international legal procedures for major trials. It is a position which appears to resemble a legalistic call for localization, a major trend in development which advocates for power and decision making to countries and communities where programs are being run.
Hybrid courts, according to Adeogun-Phillips, are “domesticated international court or internationalized domestic courts … ideally composed of both local and international prosecutors and judges.”
While not yet the mainstream, Adeogun-Phillips told Devex hybrid courts are not new, having been used in East Timor in 2000, Sierra Leone in 2002, Cambodia in 2006, Lebanon in 2009, and in Senegal, with the African Union, in 2013, to prosecute the war criminal, the former president of Chad, Hissène Habré.
But well-known international legal entities such as the Rwanda tribunal, the former Yugoslavia tribunal, or the International Criminal Court are not hybrid, added Adeogun-Phillips.
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He said hybrid courts are distinct from their solely international counterparts because national courts “allow full participation of citizens from affected countries … One of the major drawbacks of international courts is the fact that trials take place so far away from the location where crimes were committed.”
“Imagine taking a witness from rural Rwanda or the former Yugoslavia to the Hague,” said Adeogun-Phillips. “He has to deal with cultural issues, issues of weather, food, diet, having to be in strange communities, he may have never been on a plane before.”
“It is difficult, if not impossible, for anyone experienced in dealing with the victims, witnesses, survivors of large scale atrocities to argue solely international forums are better suited to aid national reconciliation than domestic or hybrid ones,” he added.
One of the most important arguments for hybrid courts, according to Adeogun-Phillips, is they allow victims and broader society to see justice being done, to the point where the physical location of the trial “aids the healing process.” It was only when Adeogun-Phillips visited Rwanda after prosecuting the tribunal that he met key witnesses again, who until that meeting did not know how their testimonies had been used and the outcome.
“Had those trials been taking place in Rwanda, they would be able to follow that, on TV, on radio,” said Adeogun-Phillips. While international trials have outreach programs, “there’s nothing like victims being able to see justice being done, to see me on my feet as a prosecutor, making my opening and closing statements, to see me cross-examining a serial rapist, to see me cross-examining a perpetrator.”
The safety of key witnesses also poses a challenge for hybrid trials because of the danger of reprisals, Adeogun-Phillips acknowledged. But this is also a problem for international courts — in Rwanda, it was clear to communities when witnesses were visited and interviewed by U.N. convoys, and when they were flown out of the country to testify. The lives of some would never be the same, with “many instances” of witnesses having to change their identities and resettle in new countries, according to Adeogun-Phillips.
Adeogun-Phillips also believes lessons must be learned from the past. He said: “From the onset, expert help is needed in establishing an achievable mandate for the operation of the hybrid court. That mandate must be limited and focused on prosecuting only those who bear the greatest responsibility for the crimes charged. There must be a prosecutorial plan and that plan must be realistic and achievable.”
But Adeogun-Phillips saw vast potential advantages of hybrid courts. The opportunity for victims of atrocities to follow the crimes of their perpetrators “makes a marked difference in the ability to heal and reconcile,” Adeogun-Phillips said. “Can we legitimately implore victims and survivors of mass crimes to be patient and exercise restraint if we are unwilling to deliver justice to assuage their wounds in a manner they can relate to?” he said. “That has to be important to the process of reconciliation in post-conflict situations.”
This was a “great motivation” for the success of the special court for Sierra Leone, according to him. It was the first hybrid international tribunal that was done “within the crime scene … that allowed the people of Sierra Leone to see justice being done.”
“It is difficult, if not impossible, for anyone experienced in dealing with the victims, witnesses, survivors, of large scale atrocities to argue solely international forums are better suited to aid national reconciliation than domestic or hybrid ones.”
— Charles Adeogun-Phillips, former lead international prosecutor, U.N. International Criminal Tribunal for RwandaAnother key argument Adeogun-Phillips makes for hybrid courts, which are “ad hoc in nature,” is their flexibility. He said there is “virtually no situation that a hybrid tribal court cannot accommodate. … They can operate utilizing a distinctive blend of both domestic international and domestic substantive and procedural laws, which can be derived from both common and civil law jurisdictions.”
Examples include the Special Tribunal for Lebanon, investigating the 2005 bombings that killed former President Rafik Hariri, where Adeogun-Phillips said procedure rules used by the court as “essentially international in nature but the applicable substantive law utilized in that court is derived from the Lebanese criminal code.” Meanwhile, the Extraordinary Chambers for Cambodia is based on the country’s criminal procedure but its substantive law “is for the most part international in character,” Adeogun-Phillips said.
There are also security advantages to hybrid trials. The special court for Sierra Leone saw Charles Taylor, the former Liberian president who was convicted of atrocities committed in the neighboring country, moved from Freetown to the Hague for security reasons, while lesser perpetrators were tried locally.
Hybrid courts also engage “legal and investigative talent to achieve efficient investigation and prosecute. And at the same time, they’re able to build local capacity among professionals in that country. After all, the locals must know their territory better than any foreigner does.”
In the case of the Rwanda tribunal, it took international staff a long time to get used to Rwandan culture and understand the political backdrop of the genocide, Adeogun-Phillips said. “Had we utilized more locals in the early part of our work,” he added, “We may have been able to achieve the prosecutions a lot more efficiently.”
Other benefits include the local documentation and archiving of cases — potentially important landmarks in a country’s history — for successive generations.
But given the fragility of many places affected by war, there are risks associated with the pursuit of justice, and tension between trying to achieve peace and justice simultaneously, according to Adeogun-Phillips.
He said: “This is because, on the one hand, pursuing justice or accountability might create more conflict in an already difficult situation … In pushing for justice, those accused of atrocious crimes will feel the need to fight for survival, which in itself may lead to an escalation of violence or prolongation of conflict.”
As for Ukraine — should the time for major war crimes trials ever arrive — Adeogun-Phillips is in favor of allowing Ukrainians to choose their own method of justice, despite some popular clamor for cases to go to the International Criminal Court at the Hague. “The world doesn’t realize there are so many models available,” Adeogun-Phillips said. “Let them decide what they want to do.”