The Gambia’s Hybrid Tribunal: A Bold Experiment in Transitional Justice Commentary
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The Gambia’s Hybrid Tribunal: A Bold Experiment in Transitional Justice
Edited by: JURIST Staff
The author, JURIST's managing editor for long-form content, argues that the newly approved hybrid special tribunal in The Gambia, which blends international and domestic justice systems to address human rights violations under Yahya Jammeh's regime, represents a promising yet challenging model for transitional justice in Africa and beyond, particularly through its people-centered approach to reconciliation and accountability...

The approval of establishment of a hybrid special tribunal in The Gambia represents a significant development in the field of transitional justice, offering a potential model for other nations grappling with legacies of human rights abuses. This innovative mechanism, blending elements of international and domestic justice systems, aims to address the widespread violations committed during the authoritarian rule of Yahya Jammeh while prioritizing a people-centered approach to justice and reconciliation. The strong endorsement from the Gambia Bar Association (GBA) underscores the widespread support for this ambitious undertaking and its potential to reshape the landscape of accountability in Africa. However, the path to success is fraught with challenges, demanding careful consideration of its implementation and long-term impact. The initiative was first touted on February 29, 2024, when The Gambia-Economic Community of West African States (ECOWAS) Joint Technical Committee held its inaugural meeting on the establishment of a hybrid court. This court aims to hold accountable those responsible for gross human rights violations committed during the Yahya Jammeh regime in The Gambia (1994-2017), a period marked by systematic human rights abuses, including extrajudicial killings, enforced disappearances, torture, and widespread political persecution.

The scale and brutality of these crimes created a deep societal wound, hindering national healing and development. While the Truth, Reconciliation and Reparations Commission (TRRC) played a vital role in documenting these atrocities and fostering public dialogue, its mandate did not extend to criminal prosecution. The establishment of the hybrid tribunal signifies a commitment to move beyond truth-telling to hold perpetrators accountable and deliver justice to victims. Like the trial in Switzerland of former Gambian Interior Minister Ousman Sonko under the Jammeh regime which was made possible by Switzerland’s recognition of the principle of universal jurisdiction under the Swiss Criminal Code passed in order to incorporate the Rome Statute of the International Criminal Court  into the current legislation in 2010.

Assessing the Value of Tribunals:

Hybrid tribunals in and of themselves represent a significant advancement in international justice. These innovative courts blend international and domestic legal systems, offering a unique and often more effective approach to prosecuting serious crimes like war crimes and crimes against humanity. Their hybrid nature allows them to overcome challenges that purely international or national courts often struggle with, resulting in a more localized, legitimate, and impactful pursuit of justice.

Unlike the permanent tribunal such as the International Criminal Court (ICC), operating under international organisations, or purely domestic courts confined to a single nation’s legal framework, hybrid tribunals combine the strengths of both. They lead to collaborative effort, integrating international and national judges, prosecutors, and administrative staff. This blend extends to legal principles, incorporating both international and domestic laws to create a system sensitive to the legal and political nuances of the affected country.

Several successful hybrid tribunals demonstrate the effectiveness of this approach. The Special Court for Sierra Leone (SCSL), for instance, prosecuted those most responsible for the atrocities of the Sierra Leone Civil War, utilizing a joint court with international judges. Similarly, the Extraordinary Chambers in the Courts of Cambodia (ECCC) pursued justice for crimes committed during the Cambodian genocide, again with a combined bench of Cambodian and international judges. The Special Tribunal tasked with investigating the assassination of former Prime Minister Rafik Hariri, further exemplifies this model, combining Lebanese and international legal frameworks.

The integration of local legal systems and personnel offers numerous advantages. Firstly, it enhances the legitimacy and acceptance of the tribunal within the affected population, fostering a sense of ownership and participation in the justice process. It is vital for fostering reconciliation and preventing future atrocities.

Secondly, hybrid tribunals strengthen domestic legal systems. By providing technical support, resources, and international expertise, they build capacity within national legal frameworks. This leaves a lasting legacy, extending far beyond the prosecution. Thirdly, the blend of international and local legal perspectives enhances the perceived impartiality of the tribunal. International oversight provides checks and balances, while local understanding ensures cultural sensitivity and avoids alienating the local population. Finally, hybrid tribunals can be more cost-effective than purely international courts. By utilising existing national infrastructure and personnel, they can be established and operated more quickly and efficiently.

Despite their advantages, hybrid tribunals face challenges. Political interference, inconsistencies in legal standards, and resource limitations can hinder their effectiveness. Balancing international and local laws requires careful negotiation and consensus. These challenges call for rigorous planning, strong international support, and a commitment from the host nation to uphold the rule of law.

The Hybrid Model: A Balancing Act

The decision to establish a hybrid tribunal reflects a pragmatic understanding of the limitations of both purely domestic and purely international justice mechanisms. A purely domestic approach might lack the necessary independence, resources, and expertise to effectively prosecute high-profile cases involving powerful individuals implicated in serious international crimes. Conversely, a purely international tribunal could face challenges related to state sovereignty and potentially limited buy-in from the local population.

The hybrid model attempts to navigate these challenges. By integrating Gambian and international legal professionals, it leverages the strengths of both systems. International expertise in international criminal law provides technical assistance and ensures adherence to international standards, while Gambian participation ensures local ownership, legitimacy, and cultural sensitivity. This collaborative approach, praised by the GBA, underscores the importance of a locally-driven process.

The integration of Gambian and international law into the tribunal’s mandate and procedures is also crucial. It ensures compatibility with the national legal system, enhances legitimacy, and facilitates the integration of the tribunal’s findings into Gambian law. Furthermore, the tribunal’s work should actively contribute to building capacity and reforming the Gambian justice system, leaving a sustainable legacy of legal and institutional reform.

Beyond Prosecution: A People-Centered Approach

A defining feature of this hybrid model, and a critical factor in its potential for success, is its commitment to a people-centered approach. This is not simply about criminal prosecution; it’s about prioritizing the needs and perspectives of victims. Mechanisms for victim participation, including providing opportunities to testify, access to reparations programs, and meaningful involvement in the proceedings, are crucial. The GBA’s support strongly emphasizes this aspect, recognizing that true justice and reconciliation require more than simply holding perpetrators accountable; it must also address the suffering of victims and foster collective healing. The success of the TRRC, which relied heavily on victim testimony, provides a strong foundation for this people-centered approach in the tribunal.

Challenges and Risks: Navigating the Path to Justice

Despite its potential, the hybrid tribunal faces significant challenges. The first and perhaps most significant is securing sustained political commitment from both the Gambian government and the international community. Consistent political will is crucial for providing adequate funding, ensuring the independence of the tribunal from political interference, guaranteeing witness protection, and upholding the rule of law throughout the process. A lack of sustained commitment could fatally undermine the tribunal’s work.

Furthermore, securing adequate financial resources is essential. The tribunal’s establishment and operation will require significant funding, demanding effective resource management and robust international donor support. Robust witness protection programs are equally essential to encourage participation and ensure the safety of those who come forward.

The delicate balance between the pursuit of justice and the need for national reconciliation presents another critical challenge. The tribunal must strive to hold perpetrators accountable while simultaneously avoiding actions that could exacerbate societal divisions. It must promote healing and reconciliation, and prevent the proceedings from becoming a source of further trauma or division within the country.

Regional and International Implications: A Model for Africa?

The Gambia’s hybrid tribunal holds significant implications for transitional justice in Africa and beyond. Its success could serve as a model for other nations facing similar challenges, such as in Ethiopia, or The DRC. The careful consideration of its challenges and the lessons learned from its implementation will be crucial for informing future transitional justice initiatives. Furthermore, the tribunal’s focus on collaboration between international and national actors demonstrates the potential of hybrid models for bridging the gap between international legal standards and local contexts. This approach could potentially be adapted and refined for other contexts in Africa and beyond, providing a pathway for addressing complex transitional justice challenges effectively.

The establishment of the hybrid special tribunal in The Gambia is a bold experiment in transitional justice. Its success will depend on sustained political will, adequate resources, and an unwavering commitment to a people-centered approach. While the challenges are considerable, the potential rewards—justice for victims, accountability for perpetrators, and the fostering of lasting peace and reconciliation—are immense. The careful planning, effective implementation, and thorough evaluation of this initiative will have significant implications not only for The Gambia but also for the wider pursuit of justice and accountability in Africa and globally. The international community has a critical role to play in supporting this endeavor, ensuring that this ambitious initiative can realize its transformative potential.

Ultimately, the success of hybrid tribunals will depend on our collective commitment to promoting justice, accountability, and reconciliation. By working together to support these institutions, we can help to build a more just and equitable world for all.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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