The Aims of Hybrid Tribunals: An examination of the theoretical basis for the work of the Special Panels for Serious Crimes in East Timor

Abstract

For societies recovering from mass atrocities, the hybrid tribunal is one of many post-conflict justice options aimed at dealing with the past. As opposed to international tribunals, hybrid tribunals are touted as a more relevant option for the harmed community as they are located within the territory where the crimes were committed and combine international and domestic law and personnel. These tribunals are also given varied and somewhat nebulous aims such as applying retributive justice, promoting deterrence, contributing to peace, reconciliation, the rule of law and strengthening of the national justice system. To date, research and analysis of hybrid tribunals has largely been dominated by consideration of their practical operation without consideration of their theoretical underpinnings. Focusing on one hybrid tribunal, the Special Panels for Serious Crimes (SPSC) in East Timor, this paper examines the two theoretical justifications cited most prominently by the SPSC, retribution and deterrence. The paper questions the assumptions of these theories developed in stable states in the context of mass atrocities as well as in the unique and fragile circumstances hybrid tribunals often operate. The application of these theories through the work of the SPSC is also assessed and in doing so the realpolitik in which the tribunal operates is examined revealing the sometimes competing concerns of nation building and reconciliation. The examination of the SPSC raises a number of problems in the establishment and operation of the hybrid model. However it is not necessary that the failures of the SPSC reflect a weakness of the hybrid model but provide lessons in relation to improving the design and implementation of future hybrid tribunals. The thesis argues that hybrid tribunals require a sound theoretical basis to guide their development and operation and to date such consideration is lacking. The applicability of both retribution and deterrence as sole theories for the operation of a hybrid tribunal is questioned but aspects of both theories are argued to be potentially useful in the development of a theory for hybrid tribunals.