혼합재판소 체제의 장단점과 그 활용방안: 시에라리온과 캄보디아 사례 간 비교를 중심으로

The hybrid court system, which emerged in the 21st century, including the Sierra Leone Special Court(SCSL), is drawing attention from the international community as a new type of ad hoc tribunals that combines international and domestic elements. Accordingly, this article examines the advantages and disadvantages of the hybrid court system by comparing and contrasting the examples of the SCSL and the Extraordinary Chambers in the Courts of Cambodia(ECCC), which are in stark contrast to the evaluation. The SCSL, established based on a bilateral treaty between Sierra Leone and the UN, made it clear that state immunity enjoyed by the head of the State cannot be invoked in punishing international crimes based on jurisdiction that precedes domestic courts. In addition, as the SCSL broadened its ratione materiae than the former generations of international criminal tribunals and prosecuted these crimes in reality, it convicted conscripting child soldiers and forced marriage for the first time. Unlike the SCSL, the ECCC which basically belongs to the domestic judicial system has been criticized for neglecting the intervention of the government in the trials and arbitrary decision-making by domestic judges by comprising its composition of a majority of Cambodian judges. The essence of hybrid courts lies in the flexibility of the operation of the tribunals through the appropriate distribution of domestic and international elements. Since comparing the two examples suggests that the success or failure of the hybrid court system depends on this flexibility, the international community needs to consider these cases in the process of establishing hybrid courts in the future. Theoretically, it also contends intrinsic merits within the hybrid court system by comparing the International Criminal Court(ICC). While the ICC applies the principle of complementarity, the hybrid court can ensure primary jurisdiction over domestic courts, and its accessibility can expedite the judicial proceedings and collect evidence easily because it is located where the crimes took place. In particular, the criminal trials conducted where the crimes occurred are more consistent with the international criminal justice, which is an ideology of international criminal law, in that it can make victims of international crimes realize the achievement of justice and lead to a reconciliation with local communities. In conclusion, this article proposes what elements should be focused on in priority when hybrid courts are to be founded in the future through the above discussion.