Institutional Design and (Non-)Complementarity: Regulating Relations Between Hybrid Tribunals and other Judicial and Non-Judicial Institutions

In: Kirsten Ainley and Mark Kersten (eds), Hybrid Justice: Innovation and Impact in the Prosecution of Atrocity Crimes, Oxford University Press (2023, Forthcoming)

23 Pages Posted: 28 Apr 2020 Last revised: 25 Jul 2023

See all articles by Patryk I. Labuda

Patryk I. Labuda

Polish Academy of Sciences - Institute of Legal Studies

Date Written: March 7, 2020

Abstract

Hybrid tribunals usually operate alongside other judicial and non-judicial bodies with similar accountability functions. In particular, a hybrid tribunal can share jurisdictional powers with (ordinary) national courts, one or more international (criminal) tribunal(s), a truth commission, or other investigative and prosecutorial bodies. When the mandates of different institutions overlap, there is a need to identify and regulate relations between them. Ideally, legal rules embedded within each institution’s mandate minimize a duplication of tasks, prevent unnecessary conflict, encourage cooperation, and maximize cross-fertilization. This chapter argues that the term ‘complementarity’, which is often invoked to describe questions of institutional design, is an unhelpful way of conceptualizing relations between hybrid tribunals and other judicial and non-judicial institutions. Drawing on examples from the Democratic Republic of Congo, the Central African Republic and South Sudan, it explains why the International Criminal Court’s jurisdictional framework generates confusion and uncertainty over who enjoys priority and who has decision-making power. Other concepts and rules, for instance primacy, deferral, and subsidiarity, delineate the powers and functions of different institutions more clearly, generating healthier interactions between different transitional justice mechanisms in the long run.

Suggested Citation

Labuda, Patryk I., Institutional Design and (Non-)Complementarity: Regulating Relations Between Hybrid Tribunals and other Judicial and Non-Judicial Institutions (March 7, 2020). In: Kirsten Ainley and Mark Kersten (eds), Hybrid Justice: Innovation and Impact in the Prosecution of Atrocity Crimes, Oxford University Press (2023, Forthcoming), Available at SSRN: https://ssrn.com/abstract=3550502

Patryk I. Labuda (Contact Author)

Polish Academy of Sciences - Institute of Legal Studies ( email )

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