may be perceived as detracting from efficiency. However, legacy should not be regarded as an
optional or ancillary activity, but should form a part of the core mandate of a hybrid tribunal and
should be adequately supported and funded. Individual staff members should be encouraged
to take initiatives in these areas as part of their job descriptions. Such initiatives may include
mentoring, but may also involve participating in discussions for legal reform, training and capacity-building of civil society.
Much of the impact that hybrids may have in this area will require effective partnerships with
civil society, the local legal profession and other domestic actors. The role of internationals
should not be to eclipse these initiatives, but to provide support and advice to any initiatives that
are locally led.98 Moreover, capacity-building should be a two-way process, with internationals
joining a hybrid initiative being required to learn about a country’s history, culture and legal
tradition. For instance, this will be crucial for judges in assessing the demeanour of witnesses.
At the same time, it must be accepted that rebuilding a domestic legal system is a much larger
and more ambitious task, and a hybrid tribunal cannot be expected to perform this task in full,
although it may have a contribution to make. That is why due consideration must be given to
a coordinated approach that seeks to balance the policy considerations in pursuing justice for
past crimes and rebuilding the rule of law and the domestic legal system. The report of the
Secretary-General highlights the relationship between these constructs, but the appropriate
balance will be context-specific.
4. Other capacity considerations
Some other capacity considerations relevant to hybrid tribunals are:
•N
eed for flexible staffing structure depending on phase of work. Much of the challenge in
establishing any specialized capacity, including a hybrid tribunal, is logistical. Hybrids need
to be adequately resourced and staffed, and should have a flexible staffing structure that
is able to expand and contract in order to accommodate the various stages of the proceedings. Early needs are likely to be logistical and in the area of investigations, whereas
later stages will require suitable trial lawyers and appellate counsel. Hiring staff (including
judges) on a phased basis, as needed, will help keep expenditures within the approved
budget.
• Creation of adequate defence capacity. As mentioned, hybrids have generally allocated
insufficient capacity and resources (international or domestic) to the defence, resulting in
lack of equality of arms. The Defence Office of the Special Court for Sierra Leone, led by
the Principal Defender, constitutes a significant improvement on prior practice and ought
98
hat should in any case be avoided is a “reverse legacy”, where the problems of the domestic legal system are incorporated
W
into the hybrid. Short-term negative consequences may also be caused by draining local capacity away from the domestic
legal system into the hybrid structure.
35
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