Transitional justice in transit: why transferring a Special Court for Sierra Leone trial to The Hague defeats the purposes of hybrid tribunals

Padraig McAuliffe

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    6 Citations (Scopus)

    Abstract

    This article examines the centrality of domestic location in transitional justice, using the example of the removal of the Charles Taylor trial from the Special Court for Sierra Leone's base in Freetown to The Hague to illustrate what is lost when trials are removed from the survivor population. While transitional criminal trials are usually justified on the basis of their ability to herald the return of the rule of law, the emergence of hybrid courts and the principle of complementarity demonstrate a growing realisation that purely international paradigms of transitional justice do little to normalise court processes that are at the core of the rule of law. This article argues that the transfer defeats the distinctive rule of law reconstruction potential of hybrid courts which emphasizes the integration of local staff and voices into the transitional justice process to make it more relevant to the survivor community and to inculcate international norms and practice. It does so for two reasons. Firstly, the transfer of the trial from the local population impairs the suggested ability of hybrid courts to legitimize the idea of resolving disputes through the domestic courts. Secondly, the removal risks undoing positive advances made in earlier SCSL trials by compounding the local perception that these advances are the product of international dominance of the court, and in the process undermines local confidence that these advances are sustainable or applicable domestically. Though the Taylor removal was arguably unavoidable, cataloguing what has been lost will be of relevance in future when decisions about the location of a trial are made under the ICC's complementarity regime.
    Original languageEnglish
    Pages (from-to)365-393
    Number of pages29
    JournalNetherlands International Law Review
    Volume55
    Issue number3
    DOIs
    Publication statusPublished - Dec 2008

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    Sierra Leone
    justice
    constitutional state
    ability
    local population
    reconstruction
    confidence
    regime
    paradigm
    staff
    community

    Keywords

    • Transitional justice
    • Special Court for Sierra Leone
    • Rule of law
    • Hybrid courts
    • Legitimacy
    • Complementarity

    Cite this

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    abstract = "This article examines the centrality of domestic location in transitional justice, using the example of the removal of the Charles Taylor trial from the Special Court for Sierra Leone's base in Freetown to The Hague to illustrate what is lost when trials are removed from the survivor population. While transitional criminal trials are usually justified on the basis of their ability to herald the return of the rule of law, the emergence of hybrid courts and the principle of complementarity demonstrate a growing realisation that purely international paradigms of transitional justice do little to normalise court processes that are at the core of the rule of law. This article argues that the transfer defeats the distinctive rule of law reconstruction potential of hybrid courts which emphasizes the integration of local staff and voices into the transitional justice process to make it more relevant to the survivor community and to inculcate international norms and practice. It does so for two reasons. Firstly, the transfer of the trial from the local population impairs the suggested ability of hybrid courts to legitimize the idea of resolving disputes through the domestic courts. Secondly, the removal risks undoing positive advances made in earlier SCSL trials by compounding the local perception that these advances are the product of international dominance of the court, and in the process undermines local confidence that these advances are sustainable or applicable domestically. Though the Taylor removal was arguably unavoidable, cataloguing what has been lost will be of relevance in future when decisions about the location of a trial are made under the ICC's complementarity regime.",
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