The Performance Question — Comments

Now: Oldest First

Comment on the Performance Question: “The ICC has established four key goals regarding, broadly, its proceedings, leadership, witness security, and victim access. What are the appropriate ways to measure the ICC’s progress towards those stated goals? How can the performance of the ICC as a whole be properly assessed?”

Expand All

Katelyn_Rowe
6214
July 10, 2017
12:04 pm

The ICC Should Develop a Qualitative Performance Indicator to Measure Whether Victims’ Access to the Court Has Been Adequate

I. Introduction

Since its inception, the ICC has promoted the idea that “victims have the right to put their views and concerns directly to the judges” during ICC proceedings.1 Moreover, the ICC has declared that victim participation “can only be deemed meaningful, rather than purely symbolic, if victims are entitled to positively contribute to the search for the truth.”2 Therefore, understanding the contours of victim participation is an important inquiry in evaluating victims’ access to the Court.

In November 2015, the ICC published a report on different performance indicators that may be useful for measuring the Court’s success in various areas.3 The report identifies “Victims have adequate access to the Court” as a key goal that should be assessed.4 To evaluate this goal, the ICC’s report proposes two performance indicators that will require quantitative data collection. The first performance indicator will require the ICC to measure the “[a]verage time lapse per case between application and a decision on acceptance.”5 This measurement should give special attention to the number of victims that participate in each case.6

The second performance indicator will require the ICC to measure the “[p]ercentage of affected populations that are reached in practice through the Court’s outreach activities.”7 This measurement should include consideration for outreach activities performed by the Trust Fund for Victims and other actors working with the ICC (e.g., assisting nongovernmental organizations).8

These two performance indicators require purely quantitative data collection, and the ICC has not proposed any qualitative performance indicators. The report stresses that “it is [particularly] difficult to design a meaningful indicator” to measure victims’ adequate access to the Court.9 This difficulty stems from the fact that “appl[ying] to participate as a victim in ICC proceedings is a matter of personal choice, and is potentially affected by a wider range of external factors beyond the Court’s control.”10

I argue that the ICC should prioritize the collection of qualitative data to measure whether victims’ access to the Court has been adequate. Quantitative data alone will not reveal whether victims have experienced meaningful participation in court proceedings. Although the current performance indicators can measure how often victims access the Court, these indicators cannot measure whether the victims’ access was actually adequate. For example, the current indicators cannot capture whether victims have had positive interactions with ICC staff or legal representatives. Collecting this kind of qualitative data is valuable for the ICC because it can be used to generate hypotheses about victims’ access. Then, the ICC can collect quantitative data to confirm or reject these hypotheses. In this way, qualitative data collection will complement the current quantitative performance indicators.

Ultimately, the ICC should prioritize the collection of both quantitative and qualitative data. Moving forward, the ICC should partner with research organizations and individual academics to create a qualitative performance indicator. Then, the ICC should work with these actors to perform qualitative research on victims’ access to the Court. These studies, which may center around individual interviews or focus groups, which will allow the ICC to explore victims’ experiences with the Court in rich depth. Through qualitative inquiries, the ICC will be better prepared “to respond to the dynamic and evolving interests of victims’ communities in situation countries.”11

Part II will discuss the importance of victim participation in ICC proceedings. This will include a brief summary of provisions from the Rome Statute and ICC Rules of Procedure and Evidence that have shaped victim participation. I argue that victim participation is an aspect of “victim access” that the ICC’s performance indicators should evaluate. In Part III, I will deconstruct the goal of “Victims have adequate access to the Court.” This will entail creating definitions for “victims” and “adequate access” that will help guide my argument.

Part IV will discuss the benefits of qualitative research. Then, this section will summarize the few examples of scholarly discourse in which researchers have gathered qualitative data about victim participation at the ICC and the Extraordinary Chambers in the Courts of Cambodia (“ECCC”). Finally, Part V will detail my suggestions for the next steps that the ICC should take to effectively measure the goal of victims’ adequate access. In both Parts IV and V, special attention will be paid to the “hidden pitfalls” and potential limitations of collecting qualitative data. I will also explain how the ICC can minimize those concerns.

II. Victim Participation in ICC Proceedings is an Aspect of “Victim Access” that the ICC’s Performance Indicators Should Evaluate

The ICC has allowed victims to engage the Court in a wide variety of ways. Victims may “apply to participate in proceedings through a lawyer, apply for reparations, seek assistance, [and] submit communications to the Office of the Prosecutor.”12 My argument focuses specifically on victim participation in ICC proceedings through their designated legal representative. The ICC permits victims (through their designated legal representative) to (1) attend and participate in hearings, (2) make opening and closing statements before the Court, (3) “[p]resent their views to the judges when the Court is considering what charges will be brought against the accused person,” and (4) question individuals who testify before the Court (e.g., witnesses, experts, or the accused).13

Three provisions of the Rome Statute explicitly promote victim participation in ICC proceedings. Article 15(3) provides that “[v]ictims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.”14 Article 19(3) provides that “[i]n proceedings with respect to jurisdiction or admissibility…victims[] may also submit observations to the Court.”15 Finally, article 68(3) provides that “[w]here the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court.”16

In addition, the ICC Rules of Procedure and Evidence support victim participation in Court proceedings. Rule 91 provides that “[a] legal representative of a victim shall be entitled to attend and participate in the proceedings.”17 Also, rule 92 provides in part that “[w]here victims or their legal representatives have participated in a certain stage of the proceedings, the Registrar shall notify them as soon as possible of the decisions of the Court in those proceedings.”18

None of these provisions include an exhaustive list of the different methods of victim participation.19 Instead, the extent of victim participation is determined by each Trial Chamber and may vary from case to case.20

In the academic community, there is almost universal agreement that victim participation in the ICC’s proceedings can contribute to the Court’s legitimacy and efficacy.21 The ICC itself has recognized that victim participation can “be an important factor in helping the [Trial] Chamber to better understand the contentious issues of the case in light of [victims’] local knowledge and socio-cultural background.”22 In addition, scholars and practitioners alike argue that victim participation can “restore victims’ sense of dignity, contribute to their ‘healing’ and rehabilitation, and bring to light facts and evidence that may not otherwise emerge.”23 The ICC has intentionally promoted victim participation and “ensur[ed] that consideration is given to their suffering” so that victims “will have confidence in the justice process and view it as relevant to their day to day existence.”24 The ICC has stressed it will “[e]nsure that victims are able to fully exercise their right to effectively participate in the ICC proceedings with effective legal representation.”25

In these ways, victim participation is a crucial component of victim access to the Court. If the ICC intends to measure victims’ “adequate access,” this evaluation should focus in part on whether victims are able to participate in Court proceedings and have positive or meaningful experiences with ICC staff or legal representatives. Although this will likely require extensive and expensive qualitative research, it will provide valuable insights on how the ICC has succeeded on the critical goal of promoting victims’ adequate access to the Court.

III. Defining “Adequate Access” is a Necessary Starting Point for Developing a Qualitative Performance Indicator

Before discussing the benefits of qualitative research, it is important to break down and define the goal “Victims have adequate access to the Court.” Defining “victims” and “adequate access” is an appropriate starting point for my argument. Please note that there are multiple aspects of “access” that should be measured through qualitative research. For example, “access” could refer to a victim’s experience working with the Trust Fund for Victims. Qualitative research on this relationship would complement the above-mentioned quantitative performance indicator that will measure the percentage of victim populations reached through the ICC’s outreach activities.

However, the ICC itself has noted that “the interest to receive reparations,” is “far from being the sole motivation of victims” who work with the ICC.26 So although the ICC should consider performing qualitative research on victim “access” to the Trust Fund for Victims, my argument will focus exclusively on victim participation in ICC proceedings. I have limited my argument to victim participation, as prescribed by Rome Statute provisions such as article 68(3), because the ICC has recognized that “the core interest of victims in the proceedings is to effectively exercise their rights to truth and Justice.”27

Therefore, in order to avoid confusion about what is being measured, the ICC should adopt definitions for “victims” and “adequate access.” This will help determine the scope of the ICC’s quantitative and qualitative performance indicators.

A. Victims

The ICC has defined “victims” as “those who have suffered harm as a result of the commission of any crime within the jurisdiction of the Court.”28 Victims must apply to participate in ICC proceedings.29 ICC judges are charged with reviewing victims’ applications and deciding whether an applicant is permitted to receive participant status.30 Only after a victim’s application is approved does the victim receive “victim participant” status and the rights associated with it.31

I argue that qualitative research should focus specifically on whether victim participants have received adequate access to the Court because “[m]any victims in situation countries are ineligible to participate” if they were not “affected by the specific crimes brought forward by the Office of the Prosecutor.”32 It would be inappropriate to measure these victims’ experiences with the Court because technically they aren’t able to “access” the Court in the same way as victim participants. Therefore, in creating a qualitative performance indicator, the ICC should recognize “victim participants” as the “victims” that are mentioned in the goal of “Victims have adequate access to the Court.”

B. Adequate Access

The definition of “adequate access” should be rooted in the rights that victim participants receive during ICC proceedings. The ICC has enumerated several rights that victim participants possess. Victim participants (1) “have the right to have a legal representative”; (2) “can present their views and concerns to the Court”; (3) are entitled to be “informed about developments in the proceedings”; and (4) “have the right to ask the Court to take all possible measures to respect their safety, well-being, dignity and privacy in the court of their participation.”33 These rights make up the “access” that victims have to the Court.

The most difficult term to operationalize in the goal of “Victims have adequate access to the Court” is the term “adequate.” If the phrase did not have this term, there would be no need for a qualitative performance indicator. Thus, the ICC’s emphasis on “meaningful participation” may inform an appropriate definition for “adequate access.” The ICC has recognized that “[t]he object and purpose of article 68(3) of the Statute and rules 91 and 92 of the Rules [of Procedure and Evidence] is to provide victims with a meaningful role in the criminal proceedings before the Court.”34 In order for victim participation to be meaningful, the ICC has stressed that victim participation “shall be ‘effective and significant as opposed to purely symbolic.’”35 In addition, the ICC has stressed that victims should have “the possibility to contribute to the truth to be established…as well as the possibility to tell their story and to have their story heard within the judicial framework.”36

In light of the ICC’s emphasis on participation that is “meaningful,” “effective,” and not “purely symbolic,” it may seem daunting to craft a concrete definition for “adequate” access. The ICC itself has expressed concern that it is too difficult to craft a meaningful performance indicator for this goal. Rather than using a nebulous term to define “adequate,” the ICC should simply measure the extent to which victims are able to exercise their rights as participants. For example, if victims are not informed about developments in case proceedings, then they have not received adequate access. A slight variation on this scenario would be that victims do receive information about case proceedings, but not in a timely manner that would allow them to correspond with their legal representative and take action. This would also be considered inadequate access.37 Thus, access is only “adequate” when victims have had the opportunity to exercise their rights as participants in ICC proceedings.

IV. Existing Qualitative Research on Victim Participation Can Help Guide the ICC’s Creation of a Qualitative Performance Indicator

Qualitative research will serve as a useful performance indicator because it will reveal broad patterns among victims’ experiences with the ICC. While there is no concise definition of qualitative research, it ultimately “aims to understand how the participants derive meaning from their surroundings, and how their meaning influences their behavior.”38 Unlike quantitative research, “qualitative research does not intend to achieve statistical representativeness but aims at providing an in-depth understanding of complex social processes.”39 Subject interviews are one of the most common examples of qualitative research.40

Scholars Catherine Cassell and Gillian Symon argue that qualitative research involves “a focus on interpretation rather than quantification.”41 A qualitative researcher must be “flexib[le] in the process of conducting research” and maintain an “orientation towards process rather than outcome.”42 Similarly, scholars Norman Denzin and Yvonna Lincoln argue that qualitative research “involves an interpretive, naturalistic approach to the world.”43 A qualitative researcher must “attempt[] to make sense of, or to interpret, phenomena in terms of the meanings people bring to them.”44 This requires the researcher to “turn the world into a series of representations, including field notes, interviews, conversations, photographs, recordings, and memos to the self.”45

Qualitative research is preferable when the existing field of research is not fully developed.46 Researchers can use qualitative methods to “generat[e] new hypotheses and theories.”47 Or, qualitative methods may be used “to identify the factors that affect the areas under investigation.”48 Researchers can then take their quantitative findings and use them to inform the collection of quantitative data.49 In this way, “combining quantitative and qualitative research helps to develop a conceptual framework” to direct a research path.50 This reaffirms the belief that “qualitative and quantitative methods should be viewed as complementary rather than as rival camps.”51

If the ICC wants to evaluate the adequacy of victims’ access to the Court, qualitative research can bring the victim’s perspective to the forefront of the ICC’s analysis. Scholars and practitioners alike contend that qualitative research is necessary to inform the ICC about how victim participation can be more meaningful and effective.52 However, there is a serious lack of in-depth, qualitative research on the effect of victim participation in international criminal justice processes.53 This dearth of literature may be a result of various criticisms against qualitative research (e.g., too expensive and time consuming; unscientific and too subjective).54

However, there currently exists a small handful of studies on victim participation at both the ICC and the Extraordinary Chambers in the Courts of Cambodia (“ECCC”). The ICC can gain important insights from these studies by examining the qualitative methods employed (e.g., interviews, focus groups, transcript review), the types of individuals who participated (e.g., age, gender, country of origin, victim status), and the limitations of each study.

A. Two Studies of Civil Party Participation in the ECCC

In 2011, Eric Stover, Mychelle Balthazard, and K. Alexa Koenig published a study about victim participation in the ECCC.55 The authors stressed that the ECCC was the first international criminal tribunal to allow victims of mass atrocities to serve as “civil parties” at trial.56 This meant that victims were not limited to strictly serving as witnesses in ECCC proceedings.57 In light of this new opportunity for victim participation, the authors focused their research on (1) “how civil party participation shaped the trial proceedings at the ECCC,” and (2) “how the civil parties viewed their interactions with the court.”58 Until this study, there had been barely any research on the impact of victim participation in the ECCC.59

The authors performed qualitative research for their study, which consisted of reviewing trial transcripts from the Duch trial and conducting interviews with civil parties.60 In addition, the authors supplemented this research by conducting “interviews with current and former members of the Cambodia court—judges, prosecutors, and administrators—as well as lawyers, psychologists, and human rights workers who interacted with the civil parties on a regular basis.”61

The authors conducted two rounds of interviews with civil parties.62 They conducted the first round in November and December 2009 with twenty-one of the twenty-two civil parties who had testified at the Duch trial.63 The authors interviewed eleven males and ten females, whose ages ranged from 33 to 79.64 After the verdict was delivered, the authors conducted a second round of interviews in August 2010 with seventeen of the twenty-one civil parties from the first round.65 During the interviews, the authors asked questions such as, (1) “What motivated [you] to testify and what was it like to appear before the accused?” (2) “What did [you] think of the behaviour of the judges, prosecutors, and defence attorneys?” and (3) “Was the process fair, the verdict just, and the sentence appropriate?”66

The authors expressed concerns about one limitation of their study.67 Because the authors relied on trial transcripts and interviews from “a relatively small number of individuals,” they conceded that they might “run the risk of formulating general conclusions from a limited data set.”68 To temper these concerns, the authors stressed that their overall purpose was not to create an all-encompassing explanation for what victims experienced when they participated in the ECCC.69 Rather, the authors’ main purpose was to perform qualitative research that would reveal how each victim’s “experience of testifying [at the Duch trial] affected their lives and their quest for justice.”70

In 2014, Elisa Hoven published a second study about civil party participation at the ECCC.71 Hoven’s goal was to “explore the value of civil party participation” by documenting “the perspective of all parties involved in the proceedings.”72 Hoven assumed that although a victim’s perspective “is of utmost importance when assessing the success of their participation in a trial, it is not the only factor to be taken into account.”73 For this reason, Hoven incorporated the perspective of legal professionals who participated in the trial.74

Hoven conducted thirty total qualitative interviews in Cambodia for her study.75 She interviewed individuals from the following populations: (1) civil parties, (2) legal parties to the proceedings, and (3) non-governmental organizations.76 Hoven interviewed “12 civil parties, eight civil party representatives (six civil party lawyers and two lawyers in the Lead Co-Lawyer section), four judges, three prosecutors and one defence lawyer.”77 Her fieldwork lasted approximately five months.78

Hoven made the conscious decision to not begin her study with specific hypotheses or theories about what information her interviews would yield. Instead, “interviews were analysed following the inductive approach of ‘grounded theory’ whereby hypothesis and concepts emerge[d] from the data during the process rather than being pre-defined.”79 One lesson learned from Hoven’s study was that “prosecutors and judges saw the impact of civil parties in ‘bringing a human side’ to the proceedings.”80

B. Two Studies of Victim Participation at the ICC

In 2013, Chris Tenove conducted qualitative research on victims’ attitudes toward the ICC.81 Tenove “assume[d] that victims of mass violence have valuable knowledge about the impact of violence and about the forms of justice that should address it.”82 Therefore, Tenove believed “that victims should be consulted to evaluate the ICC’s performance and the principles of justice it promotes.”83

Tenove conducted fourteen focus groups with eighty-four people total (forty-five women and thirty-nine men).84 Each focus group contained five to seven participants.85 The individuals who participated in the focus groups were either victims of Kenya’s post-election violence in 2007–2008, or victims of Uganda’s ongoing civil war.86 Because the ICC had not initiated trials against suspects from either Kenya or Uganda at the time Tenove performed his study, it is unclear whether the victims had applied for participant status with the ICC.87

To help facilitate the focus groups, Tenove partnered with local organizations: the Coalition on Violence Against Women in Kenya, and the Justice and Reconciliation Project in Uganda.88 Each group had a facilitator who led discussion for approximately two hours.89 The focus groups addressed questions such as: (1) “Who count as victims?” (2) “What kinds of justice do victims seek?” (3) “To what extent do ICC processes resonate with the desire of victims for justice?” and (4) “How should the ICC engage with victims?”90 These focus groups gave victims the space to present their personal opinions and then “discuss and justify their positions.”91

Tenove recognized two major risks for victims who participated in the focus groups.92 First, “discussions touched on possible criminal acts by other individuals, including members of the military or government.”93 Tenove responded to this risk by holding the focus group meetings in private settings.94 In addition, participants could maintain anonymity in Tenove’s meeting records.95 The second risk for victims was re-traumatization from discussing the violence that they had witnessed or experienced.96 As a precaution, “all research team members [were] trained to conduct research with survivors of violence” and “[p]articipants were offered access to psychological counseling if requested.”97

Like the previous authors, Tenove expressed concerns about his study focusing on a small sample size of the victim population.98 Therefore, Tenove also conducted interviews with ICC staff and individuals from a variety of civil society organizations in Kenya, Uganda, and The Hague.99

In 2015, the Human Rights Center (“HRC”) published the most extensive qualitative research to date on the experiences of victim participants at the ICC.100 The ICC’s Victim Participation and Reparations Section (“VPRS”) requested HRC to perform qualitative research on victim participation.101 In order to preserve the legitimacy of the researching findings, HRC and VPRS “agreed that HRC would conduct the study independently from the Court and that the conclusions and recommendations would be [HRC’s] own.”102 This relationship suggests that it would not be unprecedented for the ICC to coordinate with research organizations and individual academics to measure victims’ adequate access to the Court.

HRC conducted in-depth, semi-structured interviews with 622 individuals during the period of July 2013 to February 2014.103 The victims had already received participant status from the ICC, or had submitted applications and were awaiting approval.104 While some victims had received injuries that were covered by ICC criminal charges (“case victims”), other victims “were affected directly by the mass violence but not by specific charged offenses (situation victims).”105 HRC conducted interviews in Kenya, Uganda, the Democratic Republic of Congo, Côte d’Ivoire, and The Hague.106

Like Tenove’s focus groups, the HRC interviews were confidential and “varied in length from twenty minutes to two hours.”107 HRC used local intermediaries instead of professional translators in order to build rapport with interviewees and gain candid responses.108 Intermediaries asked the victims questions such as: (1) Do you feel like you have a voice in ICC proceedings? (2) Do you feel respected by ICC court staff? (3) Do you trust the ICC? and (4) Do you feel safe being associated with the ICC?109 One interesting finding that HRC drew from victim interviews was that “[v]ictim participants find value in filling out individual applications, but few are concerned with who at the Court reviews them.”110

HRC expressed concerns about several limitations of this study: (1) random sampling was not possible, so “there is a limit to the generalizability of [HRC’s] findings,” (2) it was not possible for HRC to visit every affected community because some areas “were too difficult to reach or, in a few cases, were deemed unsafe,” and (3) victims may not have answered questions honestly if they feared for their personal safety.111 Finally, HRC noted that the victim interviewees might have given different responses than the general population because “the time and cost required to participate in the interviews possibly created a bias in the study population.”112 To help curb these possible limitations, HRC supplemented the victim interviews by conducting interviews with “41 ICC staff members, legal representatives, and victims’ advocates to understand the evolution of the victim participation program.”113

V. Key Recommendations for a Qualitative Performance Indicator That Measures Victims’ Adequate Access to the Court

Moving forward, the ICC should partner with research organizations and academics like those mentioned in the previous section. Together, the ICC and these independent actors can (1) create a qualitative performance indicator and (2) perform qualitative research on whether victims’ access to the Court is adequate. I argue that the ICC should use the definitions of “victims” and “adequate access” that I outlined in Section III as a starting point for crafting the qualitative performance indicator. This will allow the ICC to narrow the initial pool of “victims” who may serve as potential subjects in the ICC’s qualitative research. The Human Rights Center study will be the most analogous to the qualitative research that I believe the ICC should conduct.

There are several potential “hidden pitfalls” involved in measuring the ICC’s performance. For example, research (especially qualitative research) is expensive and time-consuming. However, the ICC can overcome these pitfalls by partnering with research or academic institutions that have access to private grant funding. These institutions are well staffed with trained individuals who can dedicate the necessary time to perform extensive qualitative research. In addition, this partnership has the added benefit of allowing the ICC to be removed from the research process so that the final findings are not criticized for being biased by the ICC’s involvement. The Human Rights Center’s partnership with the ICC’s VPRS should serve as a guiding example here.

The ICC must also carefully consider what types of qualitative methods are most appropriate for its qualitative performance indicator. Prior studies show that interviews and focus groups are a viable option. One hidden pitfall that the ICC should be wary of is that “[t]oo often, interview-produced data contain only initial reflections of participants without explorations into the depth and breadth of the experience.”114 Scholars have argued that “[i]n order to obtain interview data of sufficient quality to produce worthwhile findings, researchers need to engage with participants in more than a one-shot, 1-hr session.”115 Researchers must also build rapport with the victim interviewees so that their responses are not biased or insincere.116

The ICC can overcome the pitfall of surface-level qualitative research in several ways. First, the ICC can emulate the research by Stover, Balthazard, & Koenig, who conducted two rounds of interviews with victims (pre—and post—trial verdict). This would also help the ICC to minimize the potential bias of victims’ answers being motivated by trial outcomes. Second, the ICC can emulate Tenove’s study, which allowed victims to expand, build upon, and justify their answers during focus group participation. Finally, the ICC can follow the trend exhibited in all of the previously discussed studies and supplement victim interviews with information drawn from ICC staff, legal representatives and civil society organizations that work closely with victims.

Finally, the ICC will need to account for the safety of victims who participate in any future qualitative research. Tenove’s study is particularly helpful in this respect. The ICC can use consent forms, allow victims to maintain their anonymity, and ensure that psychological support is available if victims experience re-traumatization during interviews.

Conclusion

The ICC should prioritize the collection of qualitative data to measure whether or not victims’ access to the Court has been adequate. The ICC should review prior studies conducted by academics and research institutions that contain qualitative research on victim participation in international criminal justice processes. The ICC can gain valuable insights from prior studies that will help the Court determine what the best research methods will be for a qualitative performance indicator (e.g., interviews, focus groups, surveys, transcript review). In addition, these studies will help the ICC determine which victims should be interviewed (e.g., age, gender, country of origin, victim status). Finally, these prior studies reveal the potential limitations of qualitative research, and how researchers can compensate for them.

Ultimately, quantitative data alone will not reveal whether victims have experienced meaningful participation in court proceedings. Although the current performance indicators can measure how often victims access the Court, they cannot measure whether the victims’ access was actually adequate. Herein lies the value-add of qualitative research.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
International Criminal Court, Victims Before the International Criminal Court: A Guide for the Participation of Victims in the Proceedings of the Court 12 (Sep. 16, 2010) [hereinafter Victims’ Guide], available online, archived.

(Victims typically exercise this right through a legal representative). ↩
2.
The Prosecutor v. Bosco Ntaganda, Case No. ICC-01/04–02/06, Joint Submissions in Accordance with the “Order Scheduling a Status Conference and Setting a Provisional Agenda” Issued on 21 July 2014 (Aug. 14, 2014) (emphasis added) [hereinafter Joint Submissions], available online. ↩
3.
See International Criminal Court, Report of the Court on the Development of Performance Indicators for the International Criminal Court (Nov. 12, 2015), available online, archived. ↩
4.
Id. at 6 (emphasis added). ↩
5.
Id. at 6. ↩
6.
Id. ↩
7.
Id. ↩
8.
Id. ↩
9.
Id. ↩
10.
Id. ↩
11.
Stephen Smith Cody, Victims at the ICC: What is the Way Forward?, Post-Conflict Just. (Dec. 11, 2014), available online. ↩
12.
Victims, ICC, [hereinafter Victims], available online (last visited Jul. 1, 2017). ↩
13.
Victims’ Guide, supra note 1, at 13. ↩
14.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], art. 15(3), available online. ↩
15.
Id. at art. 19(3). ↩
16.
Id. at art. 68(3).

(Please note that other Rome Statute provisions also encourage the Prosecutor and the Trial Chamber to consider victims’ interests when conducting investigations or court proceedings, respectively).

See, e.g., id. at art. 54.

(“Take appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court, and in doing so, respect the interests and personal circumstances of victims and witnesses”) (emphasis added).

See also id. at arts. 53, 65. ↩
17.
International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 91 (2013), available online, archived. ↩
18.
Id. R. 92. ↩
19.
See Mélanie Vianney-Liaud, Emerging Voices: Victim Participation in ICC and ECCC’s Proceedings, Opinio Juris (Aug. 20, 2015), available online. ↩
20.
Id.; see also Stephen Lamony, What are the Benefits and Difficulties of Victim Participation at the International Criminal Court?, Humanity United (May 4, 2015), available online.

(discussing article 68(3) and stressing that due to “the vagueness of this Article, it has been left to the jurisprudence of the Court to determine just how victims can participate in proceedings.”) ↩
21.
Stephen Smith Cody, Eric Stover, Mychelle Balthazard & K. Alexa Koenig, The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court, UC Berkeley HRC, 12 (2015), available online, archived.

(“Many observers now view victim participation as essential to the legitimacy and effectiveness of international criminal proceedings.”)

See also Misha Boutilier, Victim Participation at the International Criminal Court, U. Toronto Int’l Hum. Rts. Prog., available online (last visited Jul. 1, 2017); Lamony, supra note 20. ↩
22.
Joint Submissions, supra note 2, at 9. ↩
23.
Stephen Smith Cody et al., supra note 21, at 7. See also Luke Moffett, Meaningful and Effective? Considering Victims’ Interests Through Participation at the International Criminal Court, 26 Crim. L. Forum 255 (Jun. 2015), SpringerLink paywall, earlier version online; Mariana Pena & Gaelle Carayon, Is the ICC Making the Most of Victim Participation?, 7 IJTJ 518 (Sep. 2013), Oxford Academic paywall; Lamony, supra note 20.

(“Participation can promote individual healing and rehabilitation by providing victims with a sense of agency, empowerment, and closure. In other words, by allowing a victim to participate in the proceedings, abstract justice can take on a more personal dimension, permitting victims to ‘experience’ justice.”) ↩
24.
International Criminal Court, Report of the Court on the Strategy in Relation to Victims, ICC-ASP/8/45 (Nov. 10, 2009), available online, archived. ↩
25.
International Criminal Court, Court’s Revised Strategy in Relation to Victims, ICC-ASP/11/38, 5 (Nov. 5, 2012) (emphasis added) available online, archived. ↩
26.
Joint Submissions, supra note 2, at 8. ↩
27.
Id. ↩
28.
Victims, supra note 12. ↩
29.
Victims’ Guide, supra note 1, at 13. ↩
30.
Id. ↩
31.
Id. ↩
32.
Mark Kersten, Victim Participation at the ICC—What’s the Deal?, Just. in Conflict (Nov. 22, 2013), available online.

(noting also that “[o]f those granted participant status, only a handful appear in trial proceedings.”) ↩
33.
Id. at 12. ↩
34.
Joint Submissions, supra note 2, at 9 (emphasis added). ↩
35.
Id. (emphasis added). See also Vianney-Liaud, supra note 19.

(arguing that “victims, even if they are many, are not symbols. They deserve the opportunity to really participate in the criminal proceedings which affect them, as soon as this right is granted to them.”) (emphasis added). ↩
36.
Joint Submissions, supra note 2, at 4. ↩
37.
See, e.g., Amnesty International & REDRESS, Independent Panel of Experts Report on Victim Participation at the International Criminal Court 11 (Jul. 2013), available online.

(expressing concern that “participation is currently not meaningful for victims who are accepted to participate. It appears that, in many instances, victims are not able to access sufficient information regarding the proceedings and to present their views and concerns at appropriate stages.”) ↩
38.
Data Collection Strategies II: Qualitative Research, Cal. St. U. Long Beach, available online (last visited Jul. 1, 2017); see also Donald E. Polkinghorne, Language and Meaning: Data Collection in Qualitative Research, 52 J. Counseling Psych. 137, 138 (2005), available online.

(“Qualitative methods are specifically constructed to take account of the particular characteristics of human experience and to facilitate the investigation of experience.”) ↩
39.
Elisa Hoven, Civil Party Participation in Trials of Mass Crimes: A Qualitative Study at the Extraordinary Chambers in the Courts of Cambodia, 12 J. Int’l Crim. Just. 9 (Jan. 2014), Oxford Academic paywall. ↩
40.
See Polkinghorne, supra note 38, at 142.

(“The most widely used approach to the production of qualitative data is interviews with participants.”) ↩
41.
Catherine Cassell & Gillian Symon Eds., Qualitative Research in Work Contexts, in Qualitative Methods in Organizational Research, A Practical Guide 7 (1994). ↩
42.
Id. ↩
43.
Norman K. Denzin & Yvonna S. Lincoln, Introduction: The Discipline and Practice of Qualitative Research, in Handbook of Qualitative Research 3 (2000), available online. ↩
44.
Id. ↩
45.
Id.; see also Nancy L. Leech & Anthony J. Onwuegbuzie, An Array of Qualitative Data Analysis Tools: A Call for Data Analysis Triangulation, 22 Sch. Psych. Q. 557, 561 (2007), available online.

(noting that “[q]ualitative assessment […] could involve the use of techniques such as interviews, focus groups, observations, and documents.”) ↩
46.
Id. ↩
47.
Florian Kohlbacher, The Use of Qualitative Content Analysis in Case Study Research, 7 F. Qualitative Soc. Research 21 (Jan. 2006), available online. ↩
48.
Demetrius Madrigal & Bryan McClain, Strengths and Weaknesses of Quantitative and Qualitative Research, UX Matters (Sep. 3, 2012), available online (last visited Jul. 2, 2017). ↩
49.
Kohlbacher, supra note 47. ↩
50.
Leech & Onwuegbuzie, supra note 45, at 384. ↩
51.
Kohlbacher, supra note 47; see also Jason Hopper, Why Do Qualitative Research?, MethodLogical (Feb. 16, 2011), available online (last visited Jul. 2, 2017).

(arguing that “qualitative methods are epistemologically very similar to quantitative studies and can often bring important insights not found in quantitative studies. The point here is not that one is better than the other, but we need both.”);

Madrigal & McClain, supra note 48.

(arguing that “[w]hile quantitative and qualitative research approaches each have their strengths and weaknesses, they can be extremely effective in combination with one another.”) ↩
52.
See Lamony, supra note 20.

(arguing that in order to overcome the “challenges to effective and meaningful victim participation” practitioners should “start with in-depth studies on the impact of victim participation so that processes and practices can be adequately adjusted in order to ensure that victim participation can be meaningful to all involved.”) ↩
53.
See Stephen Smith Cody et al., supra note 21.

(recognizing that “Victims’ incorporation into international criminal justice processes is widely noted as an innovation of the ICC, yet few researchers have asked victims about their experiences working with the court.”).

Kersten, supra note 32.

(noting that “we still lack in-depth assessments of the impact of victim participation in different cases, with their different judicial approaches and situation country contexts.”) ↩
54.
See Denzin & Lincoln, supra note 41, at 7.

(noting that “qualitative researchers are called journalists, or soft scientists, and their work is termed unscientific, or only exploratory, or subjective.”) ↩
55.
Eric Stover, Mychelle Balthazard, & K. Alexa Koenig, Confronting Duch: Civil Party Participation in Case 001 at the Extraordinary Chambers in the Courts of Cambodia, 93 Int’l Rev. Red Cross 503 (Jun. 2011), available online. ↩
56.
Id. at 503. ↩
57.
Id. ↩
58.
Id. at 504. ↩
59.
Id. at 507. ↩
60.
Id. ↩
61.
Id. ↩
62.
Id. ↩
63.
Id. at 507, 516.

(All the interviews except for one took place in Cambodia. One interview was conducted via telephone with a victim who lived in New Zealand). ↩
64.
Id. at 516.

(A majority of the participants were around fifty years old). ↩
65.
Id. at 507. ↩
66.
Id. ↩
67.
Id. ↩
68.
Id. ↩
69.
Id. ↩
70.
Id. ↩
71.
Hoven, supra note 39, at 9. ↩
72.
Id. at 9 (emphasis added). ↩
73.
Id. at 10. ↩
74.
Id. ↩
75.
Id. at 9–10. ↩
76.
Id. at 10. ↩
77.
Id. ↩
78.
Id.

(Hoven was in Cambodia from June to November 2012). ↩
79.
Id. ↩
80.
Id. at 26. ↩
81.
Chris Tenove, International Criminal Justice for Victims? Assessing the International Criminal Court from the Perspective of Victims in Kenya and Uganda, 1 Afr. Portal, 6 (Sep. 2013), available online. ↩
82.
Id. at 5. ↩
83.
Id. at 1. ↩
84.
Id. at 3.

(“Eight focus groups were conducted in Kenya, six in Uganda.”).

Id. at 5. ↩
85.
Id. at 5. ↩
86.
Id.

(Specifically, the focus group “[p]articipants had experienced a range of traumas, including: bodily injury; deaths of loved ones; kidnapping; and the destruction of property.”) ↩
87.
Id. at 6. ↩
88.
Id. at 6. ↩
89.
Id. at 5.

(“Discussions were conducted in Lango, Luo or Swahili, and […] [a]udio recordings were later translated into English and analyzed.”) ↩
90.
Id. at 3–4. ↩
91.
Id. at 5. ↩
92.
Id. at 6. ↩
93.
Id. ↩
94.
Id. ↩
95.
Id. ↩
96.
Id. ↩
97.
Id. ↩
98.
Id. at 5. ↩
99.
Id. at 4. ↩
100.
Stephen Smith Cody et al., supra note 21. ↩
101.
Id. at 8. ↩
102.
Id. ↩
103.
Id. ↩
104.
Id. at 2. ↩
105.
Id. ↩
106.
Id. at 9. ↩
107.
Id. at 2. ↩
108.
Id. at 9–10. ↩
109.
Id. at 9. ↩
110.
Id. at 3. ↩
111.
Id. at 2, 10.

(The study “recruited victim participants roughly in proportion to their appearance in the victim population by geography, ethnic affiliation, ICC case affiliation, applicant status, age cohorts, and sex.”) ↩
112.
Id. ↩
113.
Id. at 2. ↩
114.
Polkinghorne, supra note 38, at 142. ↩
115.
Id. ↩
116.
Id.

(Arguing that research must prioritize “establishing a trusting, open relationship with the participant and to focus on the meaning of the participant’s life experiences rather than on the accuracy of his or her recall.”) ↩

leejj2017
6215
July 10, 2017
12:25 pm

The United States Witness Protection Program (WITSEC) is a highly successful program that can be used by the International Criminal Court as a performance indicator to measure its success in ensuring adequate security for its witnesses.

I. Introduction

There is a performance problem with the International Criminal Court’s (“ICC”) use of security and protection for its witnesses.1 Nowhere was the performance issue more clear than the ICC’s prosecution of Kenyan leaders.2 Among those charged were Deputy President William Samoei Ruto, broadcaster Joshua arap Sang, and President Uhuru Muigai Kenyatta.3 The Kenyan leaders were facing charges such as crimes against humanity, forcible transfer, rape, and contributing to the commission of these crimes.4 The crimes allegedly occurred after the national elections of Kenya from December 2007 to February 2008.5 Between those dates, around 1,200 people in Kenya were killed and over 600,000 people were displaced.6 Moreover, there were at least 900 cases of sexual violence at this time.7

Witness intimidation, bribery, and deaths have caused the ICC to drop charges against the Kenyan leaders or have caused the ICC’s cases against the leaders to be terminated for insufficient evidence.8 According to the ICC, witnesses were “systematically eliminated” through killings or forced disappearances.9 The intimidation of the ICC’s witnesses have also caused collateral damage.10 For instance, journalists covering the ICC’s case against the Kenyan leaders have been threatened and killed.11 John Kituyi, a veteran journalist, received threats and was ultimately killed for reporting on the death of a witness who was going to testify in the ICC proceedings.12 Other instances of witness killings include Meshack Yebei, an owner of a local computer college, who was recruited by Ruto’s network to intimidate and bribe witnesses.13 He was supposed to be compensated for his work, but he never received that compensation.14 He threatened to expose the ringleaders by testifying in the ICC proceedings, but instead he was found dead.15 Jonah Bureti disappeared and no one has seen him or heard of him since his disappearance.16 He was also supposed to be a witness at the ICC proceedings.17 Seven potential witnesses also have been killed due to the ICC’s cases against Kenyan leaders.18

Another notable example is the ICC’s cases against former Congolese rebel commander Bosco Ntaganda19 and former Vice President of the Democratic Republic of Congo, Jean-Pierre Bemba.20 In both cases, the Congolese leaders were charged with various war crimes.21 However, significant evidence existed of witness tampering and bribing during the ICC’s proceedings against the leaders.22 The ICC accused Ntaganda for witness tampering.23 On the other hand, Bemba was actually convicted by the ICC for witness tampering.24 Bemba’s conviction was the first time the ICC found a defendant guilty of witness tampering.25 The suspects that were convicted alongside Bemba were his lawyer Aime Kilolo, his legal case manager Jean-Jacques Mangenda, lawmaker Fidele Babala, and a defense witness Narcisse Arido.26

The Kenya and Congo examples show that there is a performance problem with the ICC’s security and protection for its witnesses and for witnesses involved with the ICC’s proceedings. Various witnesses have been tampered with and bribed as shown above. Even more devastating is the fact that some witnesses have disappeared or have been killed. The ICC’s witness protection methods need to be measured against performance indicators to determine whether the ICC’s methods are successful. A good measurement on the ICC’s performance would be to use the United States Witness Protection Program as a performance indicator.

The United States Marshals run the United States Witness Protection Program, also known as the Witness Security Program (“WITSEC”).27 The WITSEC was authorized by the Organized Crime Control Act of 1970, and has “protected, relocated and given new identities to more than 8,600 witnesses and 9,900 of their family members.”28 The WITSEC is an ideal performance indicator because they have never lost a single witness or a witness’s family member that participated in the WITSEC.29 However, before we look at whether the WITSEC can be adequately used as a performance indicator, the methods employed by the WITSEC and the ICC needs to be identified.

The WITSEC has “never lost a witness who adhered to the rules of the program.”30 The WITSEC’s success seems to be from the methods the WITSEC employs to protect its witnesses.31 The WITSEC has a conviction rate of 89% because of testimonies offered by protected witnesses, whereas “[u]nprotected witnesses generally prefer not to testify.”32 Witnesses that are accepted into the WITSEC are immediately taken, with their families, to a temporary holding area.33 Witnesses are given 24-hour protection while in high-threat areas such as pre-trial conferences, during trial, and other court appearances.34 Some of these locations can withstand bomb blasts.35 The relocated witnesses and their families are then relocated to an entirely new area, and they are given new identities with authentic documentation.36 They are given salaried jobs, counseling by psychologists,37 and some have even been allowed to change their school grades or have been given plastic surgery.38 However, the witnesses nor their family members can contact anyone from their previous life and must keep in continuous contact with the United States government.39

On the other hand, the ICC uses relocation only as last resort and when it is absolutely necessary.40 The relocation will take the witness and his family members to a safe location, inside or outside his home country, either temporarily or permanently.41 The reason relocation is a last resort is because of the immense burden on the relocated person.42 Other methods employed by the ICC include operational and procedural protective measures.43 Some operational measures include a 24-hour emergency system where if a witness is in danger, the ICC will take the witness to a safe location.44 Other operational measures include educating witnesses on having emergency backup plans and the importance of confidentiality.45 Some procedural measures include face and voice distortions, using pseudonyms for witnesses, and psychological services.46

II. The WITSEC as a Performance Indicator

Using the WITSEC as a performance indicator to measure the ICC’s success in witness protection would be effective because the WITSEC has never lost a witness.47 The WITSEC would be the most efficient a program can be because it has a success rate of 100% in terms of witness protection. To bolster this fact is that the WITSEC has an 89% conviction rate because of cooperating witnesses within WITSEC.48 We would not want to measure the ICC’s performance to a program that is only decent or only has a success rate of 80% because that may create inaccurate measures of how successful the ICC’s methods are or can be. Ideally, we would want to measure the ICC’s performance against a program that has a 100% success rate.

However, measuring the WITSEC to the ICC could have numerous extrinsic and confounding factors that are unaccounted for, and thus may not be a reliable indicator. For example, how would the differences in cultures between the United States and Kenya be measured, what would be the different types and personalities of witnesses that would want to enter a witness protection program, and what about the access to resources to create an efficient witness protection program? Additionally, the WITSEC was created to combat primarily organized crime in the United States.49 However, the crimes within the ICC’s jurisdiction are crimes such as genocide, crimes against humanity, and war crimes.50 Criminals that commit genocide may be more willing to murder witnesses than an organized crime leader or vice versa. Thus, using the WITSEC as a performance indicator may have too many factors that are unaccounted for.

The main issue with this argument is that any measure or indicator will have factors that may be unaccounted for or confounding. Even specific quantitative measures can have extrinsic factors that may confuse the data. For instance, polls by Gallup measuring whether Hillary Clinton or Donald Trump would win the 2016 Presidential Election indicated that Hillary Clinton would win.51 Instead, because of extrinsic factors unforeseen by Gallup, Donald Trump won the Presidency.52 However, that does not mean we should stop using Gallup. There will be extrinsic factors when using the WITSEC as a performance indicator. Moreover, like any measurement, there could be extrinsic factors that may be unaccounted for. However, that does not mean that the WITSEC is an unreliable indicator. With enough critical oversight by the individuals using the WITSEC as an indicator, the extrinsic factors that may have been missed can be identified and further analyzed. Therefore, extrinsic and confounding factors from measuring the WITSEC to the ICC would not be more significant than any other type of measurement.

However, the next issue is how the factors identified can be analyzed. For instance, how would the differences in cultures between the United States and Kenya be measured? Would it be efficient to attach a value to certain factors and then quantify the result? Putting a value number on different cultures does not seem to be an effective way of measuring the ICC’s success with its witness protection and security. How would the value be created? How would one determine what the value would be? Another alternative would be to analyze the factors through a totality of the circumstances point of view. For instance, instead of putting a value number on different cultures, take the differences in the cultures into account with many other factors that may influence the measurement. For instance, if the WITSEC is used as a performance indicator, factors such as the amount of resources between the WITSEC and the ICC, whether witnesses are willing to relocate, and the type of danger the witnesses are in should all be taken into account. Only after all the identified factors are taken in account can the ICC’s success be measured.

The issue with using a totality of the circumstances approach is that it is more of a subjective rather than an objective standard. In other words, there is no hard quantitative data directly stating what the result is. Instead, the approach can be prone to human error. An alternative to the totality of the circumstances approach could be a bright-line standard. For instance, the WITSEC has a 100% success rate in its witness protection system.53 Thus, in terms of a bright-line standard, the ICC’s success of its witness protection methods could be measured by a 100% success rate. In other words, if the ICC does not have a 100% success rate in protecting its witnesses and does not lose a single witness, then the ICC’s methods would be deemed successful.

The bright-line standard, however, has its faults. The standard precludes many relevant factors that could be significant in determining the ICC’s success in witness protection. For example, the ICC investigates and prosecutes cases against presidents or leaders of entire countries.54 The president of an entire country would likely have more resources to make witnesses disappear than an organized crime leader.55 Moreover, sometimes there could be hundreds of witnesses brought by the ICC,56 thus making the ICC’s duty to protect its witnesses more difficult. With the bright-line standard, if one witness dies, that means the ICC’s witness protection methods are not successful. However, if the two factors just mentioned were accounted for by using the totality of circumstances approach, the ICC’s methods may be deemed successful because the ICC beat overwhelming obstacles and only lost one witness in the process. The ICC only lost one witness out of hundreds when leaders of entire countries were trying to eliminate the witnesses. With this approach, the two factors can be accounted for and can be used to measure the ICC’s success. Moreover, the totality of circumstances approach would be more accurate than a bright-line standard, which avoids the use of extrinsic factors that could have influenced the 100% success rate.

Another issue with the totality of circumstances approach is that it may be too subjective. In other words, the approach would be more prone to human errors. For example, assume that the ICC and the WITSEC methods both had 100% success rates.57 However, the ICC used 24-hour protection around the witness’s home, whereas the WITSEC used immediate relocation. Both methods seem to work because of the 100% success rate. However, a person analyzing these methods could lead to opposite results. Such circumstances influencing the person could be his personality, his background, and how he may be feeling that particular day. He may see the 24-hour protection as an effective approach because he may have had to move around numerous times when he was a child. Relocation would require the witnesses to move. Because the 24-hour protection does not require relocation, he may decide that as the successful method. Therefore, he may decide that the ICC’s witness protection methods are successful.

On the other hand, another person analyzing the same methods may come to the opposite result. For instance, if the person had her home burglarized multiple times, she may never feel safe inside that same home. Thus, from her viewpoint, even with 24-hour protection, the witnesses could still be in danger after the protection ends. However, with immediate relocation, the witnesses will never be found again by the hitmen that are trying to eliminate them. Thus, because of the person’s experience, she may be inclined to find that the ICC’s 24-hour protection may not be successful as compared to the WITSEC’s relocation method.

First, one person would not be analyzing the methods and factors between the WITSEC and the ICC. Idealistically, there would be a group of educated individuals that would analyze the factors and methods between the two. With more individuals involved in the analysis, the more likely the subjective factor can be curtailed. For instance, it probably is not likely that a group of 10 people will all have the same experiences. Thus, having a group of individuals analyze the methods would create a more accurate result than having one person analyze the data.

Second, any type of performance indicator used to measure the ICC’s success in its witness protection methods will have subjective factors. For instance, using European witness protection methods or creating a model witness protection program will still include subjective factors. This is in stark comparison to indicators used to measure other types of successes. For instance, the murder rate in the United States has declined since the 1990s.58 There can be no subjective factors involved in reaching the result that the murder rates have declined. That is because the result is based on an analysis of numbers. There can be no way to argue that the murder rate has not declined. However, as abovementioned, it is not effective to measure the ICC’s success through a bright-line standard or to give numerical values to various factors.59 There are many relevant extrinsic factors that need to be accounted for, which could only be done with a totality of circumstances approach. The best approach would be to curtail these subjective factors by using a group of individuals to analyze the methods.60

Finally, the last issue is that using the WITSEC as a performance indicator may be an incompatible and impractical standard for the ICC, which may create the illusion that the ICC’s methods are unsuccessful. For instance, the ICC does not have a police force61 and since the ICC is not its own country, there would be an issue as to what country the witness will be relocated to. On the other hand, the WITSEC has the United States Marshals as its police force62 and has locations within the United States to relocate the witnesses to.63 Without a police force and location, it may be significantly harder for the ICC compared to the WITSEC to relocate its witnesses. Therefore, using the WITSEC as a performance indicator may give off the illusion that the ICC methods are unsuccessful.

First, the fact that the ICC does not have its own police force or locations to relocate witnesses to can be factors as part of the entire totality of the circumstances analysis. Therefore, these factors will be included to determine whether the ICC’s methods are successful compared to the WITSEC’s methods. Therefore, the ICC’s methods will not always be deemed as unsuccessful because these factors will be taken into account.

Second, the purpose of having a performance indicator is to measure the success of the ICC’s witness protection methods. However, that is not the only purpose. The ultimate purpose is for the ICC to measure and thus identify the issues it has, and then to improve upon its current methods. For instance, if the measurement shows that the ICC’s methods are successful, it needs to continue enforcing the same methods. However, if the measurement shows that the ICC’s methods are unsuccessful, the ICC will need to improve and change its methods, and this is the ultimate goal. If the two obstacles abovementioned are blocking the ICC’s success to protect its witnesses, that would mean the ICC will need to fix its methods to beat the obstacles. Thus, having the WITSEC as a performance indicator is not only for measurement, but also is a model the ICC can use to see what changes are required to improve the ICC’s methods.

Using the WITSEC as a performance indicator to measure the ICC’s success in witness protection is optical, if not at least an excellent start. However, there are many extrinsic factors, subjective influences, and impractical standards that may render ineffective the use of the WITSEC as a performance indicator. However, many of these issues can ultimately be resolved and dealt with by using the totality of circumstances approach, using a group of individuals to do the analysis, and using various other solutions. These solutions can lead to more consistent and accurate results when using the WITSEC as a performance indicator. Therefore, using the WITSEC as a performance indicator can assist in identifying issues within the ICC’s witness protection methods, and this can further lead to better results for the ICC in the future.

III. Measuring the ICC’s Performance with the WITSEC as a Performance Indicator

By using the WITSEC as a performance indicator, the ICC’s success in its witness protection methods will be measured. The totality of circumstances approach will be used instead of a bright-line standard or a quantitative value approach.

The WITSEC has a 100% success rate in witness protection.64 Moreover, the WITSEC has a conviction rate of 89% because of testimony from the protected witnesses.65 The WITSEC’s success seems to stem from its relocation methods.66 If the hitmen cannot locate the witness because he cannot be located, how would the hitmen eliminate the witness? They cannot. Other protection methods such as 24-hour protection and bomb shelters could be just as effective. However, the issue is that after the trial is over the witness needs to continue living his life. He will eventually have to leave the bomb shelter to do ordinary tasks such as grocery shopping, going to work, and watching a movie in theatres. Moreover, there will most likely be psychological damages to the witness if he lives the rest of his life inside a bomb shelter.

Additionally, being under 24-hour protection can cause similar problems. The witness will eventually have to leave his home. Law enforcement cannot continuously protect the witness for the rest of his life. That would entail law enforcement to follow the witness around when he goes grocery shopping and when he goes to work. Law enforcement will also need to protect the witness’s family members for the rest of the family members’ lives. If 24-hour protection ends because of the witness’s death, the hitmen may eliminate the family members. If other potential witnesses hear of this news, they will unlikely be willing to testify for the ICC or the United States government because they now know that the 24-hour protection will stop after their death, and therefore their family members will be in danger. Therefore, law enforcement will need to continue the 24-hour protection for the witness and his family members, even if the witness eventually dies. This alternative will be costly and would not appeal to witnesses because they will need to be followed by law enforcement for the rest of their lives.

Because the witness will eventually need to live a normal life, relocation would be the ideal method of preventing witness interferences. The hitmen will be unable to find the witness. Moreover, when the trial is finished, the witness and his family members can continue living a normal life without help from the United States government or the ICC.

The ICC, on the other hand, has had some issues with witness interferences and deaths.67 In fact, these witness interferences and deaths have caused the ICC to lose its cases and trials against important country leaders that allegedly committed atrocious crimes.68 This may be because of the methods employed by the ICC.69 For instance, the ICC uses methods such as face and voice distortions, 24-hour protection, and education.70 However, relocation is only used as last resort and only when it is absolutely necessary.71 In fact, the relocation of witnesses may sometimes be only temporary.72 Relocation will always be a burden to the witness because he will need to live in an entirely new place he is unfamiliar with and with an entirely new identity. However, as abovementioned, relocation of witnesses may be the best method to protect witnesses from harm and intimidation. The burden on the witness may be worth the benefits obtained which would be the witness’s safety, the witness’s family’s safety, and convictions for the ICC.

In stark contrast, the WITSEC relocates the witness immediately upon acceptance into the WITSEC.73 The witness and his family members are moved to an entirely new area and are given new identities with authentic documentation.74 Furthermore, he is given a salaried job, job training, and may even be allowed to have plastic surgery to change his identity or to change his school grades.75 These relocation methods seem to be the reason why the WITSEC has a 100% success rate.76 However, the ICC has lost many witnesses through bribery, intimidation, or death.77 That seems to be because the ICC does not use the relocation method as often as it should.78 In fact, the International Bar Association recommended that there is a need to “increase capacity for witness relocation” and that witness relocation programs should receive more funding and resources.79 Therefore, since the ICC methods do not seem to be as effective as the WITSEC methods, an argument could be made that the ICC procedures to protect its witnesses are not successful.

However, there are many extrinsic factors that may make it seem as if the ICC is not as successful compared to the WITSEC. For example, the WITSEC has a police force, the United States Marshals, to enforce its witness protection program.80 The WITSEC has the power to create fake documents and new identities within the United States.81 Moreover, the types of crime the WITSEC is used for is primarily organized crime.82 Therefore, the number of witnesses may not be as numerous as the number of witnesses required to prosecute genocide or war crimes. Finally, the witnesses that are being relocated are being moved to a different part of the country.83 Because of the size of the United States, “relocating a witness half-way across the country greatly assists in ensuring witness anonymity. For smaller nations like Lithuania and Bosnia, relocating within that country may not guarantee that witness stays hidden for very long.”84 Moving a witness within his own country may be easier than moving a witness to an entirely different country. The size of the United States lessens the burden for the WITSEC to protect its witnesses, and allows the WITSEC to unilaterally enforce its methods. For instance, if the WITSEC had to move witnesses outside the United States, more obstacles would burden the witness protection process such as foreign citizenship, learning another language, and needing to work with another country’s government.

The extrinsic factors for the ICC are in stark contrast with the WITSEC’s factors. Unlike the WITSEC, the ICC does not have a police force.85 Thus, it may be harder for the ICC to enforce witness protection methods. Moreover, the ICC prosecutes and investigates crimes such as genocide, crimes against humanity, and war crimes.86 Naturally, more witnesses would be required to prove a war crimes case than an organized crime case. Therefore, the ICC may have a significantly higher burden than the WITSEC if the ICC wanted to relocate all of its witnesses. In fact, sometimes there could be hundreds of witnesses called by the ICC.87 Thus, significantly more resources would be required to relocate the ICC’s witnesses. Moreover, because the ICC is not its own country, cooperation from the various states parties will be required to relocate and move witnesses. The ICC cannot unilaterally make witness relocation decisions. Thus, cooperation with the various states parties will be required. The ICC could relocate its witnesses to The Hague, but that would be ineffective because The Hague is not large enough to safely protect the witnesses. This is in stark comparison with the WITSEC which has 3.7 million square miles within the United States to relocate its witnesses.88

In comparing these extrinsic factors between the ICC and the WITSEC, the ICC’s witness protection methods may not be as unsuccessful as it seemed. There are many factors blocking and creating significantly higher burdens on the ICC than the WITSEC. However, these extrinsic factors are not insolvable or impossible obstacles. The ICC can overcome these obstacles to potentially have the same success rate the WITSEC does. Improvement is important because the ICC has lost important trials against atrocious criminals because of witness interference.89 Moreover, protecting witnesses is important for future trials for the ICC. If witnesses know that testifying for the ICC may require risking their lives because of a lack of adequate protection, witnesses will be unwilling to testify for the ICC. That means the ICC will lose more trials not because of witness interference, but because of a lack of witness cooperation. Lastly, all of human life is scared. Losing even one human life because of a lack of security is undesirable. The ICC can improve upon its methods for witness protection to achieve justice not only for current trials, but for future trials, and for the sanctity of human life.

IV. Solutions

The primary solution for the ICC to improve upon its witness protection methods is to offer immediate and permanent relocation services for its witnesses. Relocation is the ideal witness protection method because those attempting to eliminate the witness will not be able to find him and because the witness will eventually have to lead a normal life. The issue with relocating witnesses is the expenditure of resources. The ICC may lack abundant resources to sufficiently relocate all of its witnesses. This is especially true because the ICC may sometimes have hundreds of witnesses it intends to call.90

One solution to the resources issue is to ask the states parties to contribute more resources for the ICC’s relocation program. In fact, the ICC previously stated that it “remains strongly committed to the safety, security and well-being of all witnesses and relies on cooperation from the states parties for the adequate protection of witnesses.”91 Having more resources can aid in the ICC’s relocation efforts by offering immediate extraction of its witnesses, temporary safe houses, and permanent homes. The issue would be whether the states parties are willing to contribute more resources for relocation. However, because a lack of adequate witness security prevented justice against certain war criminals,92 the states parties may be more willing to offer resources to the ICC for better witness protection methods.

Even if the states parties do not offer the ICC additional resources, the ICC should still ask for hands-on assistance from the states parties. This is especially true in the light of the fact that the ICC does not have a police force93 nor an adequate location to relocate its witnesses to.94 First, the ICC should ask for assistance from the states parties for their police force to assist the ICC in the relocation of witnesses. This solution will require less resources from the ICC because the ICC will not need to create its own police force or task force. An issue arises, however, when the ICC is investigating or prosecuting a president of a country. The president is likely to be in control of his own police force because he is the leader of that particular country. How would the ICC ask that country’s police force to relocate witnesses inside that country if the president will likely order the elimination of those same witnesses? The ICC could ask the other states parties to aid in relocation efforts of those witnesses. However, that would force a foreign police force entering into a different country’s land. That may create conflicts between various countries that the states parties may not want.

The ICC may create its own police force. However, that may require significant resources from the ICC. The ICC could also create its own task force whose only responsibility is to relocate witnesses instead of creating an entire police force. That alternative would be less expensive because less bodies would be required. However, what makes the relocation of witnesses more important than having a police force for executing arrests or search warrants? Thus, a slippery slope may be created and that may require the ICC to create its own police force, which would require considerable resources. The best solution for this issue may be for the ICC to ask for assistance not from states parties, but from Interpol or the United Nations Police. In that alternative, no conflicts between countries will be created and the ICC will not have to expend significant resources to create its own police force.

The ICC does not only need a police force to extract the witness, but also it needs a location to bring its witnesses to. The issue with the ICC is that it is not its own country. The ICC is located in The Hague, and The Hague may not be sizable enough to adequately protect witnesses.95 To safely relocate a witness, the witness should be relocated to a different country. That would require the cooperation of the states parties. There are two issues with this solution. First, there may be significant expenditure of resources by the states parties to assist witness relocations. For instance, the witness will need a salaried job, will need to learn a different language, and will need to learn about an entirely new culture. This solution, however, does not require only one of the states parties to assist in relocation. Each witness will be relocated to one of the 124 countries that are currently the states parties.96 Therefore, if all the states parties assume responsibility of witness relocation, the expenditure of resources may not be as significant compared to if only a couple of the states parties assist in relocation.

The second issue is if the witnesses being relocated has criminal histories. The states parties are probably unwilling to allow criminals into their countries. However, 95% of the WITSEC’s witnesses are in fact former criminals.97 However, despite their criminal backgrounds, the WITSEC’s witnesses no longer seem to be committing further crimes.98 Moreover, if a criminal is given a second chance to lead a new life with a salaried job, it seems unlikely he will want to risk his new life by committing another crime.

Finally, to save on resources for relocation, the ICC should only use essential witnesses for its trials. If the ICC only uses essential witnesses, there would be no need to call or offer hundreds of witnesses. Instead, the ICC can focus in securing and protecting the most important witnesses because they will be the only witnesses called for trial. This is a method the WITSEC uses. For example, the United States government was able to convict John Gotti despite three prior failures because Gotti’s underboss, Sammy Gravano, testified against Gotti.99 In exchange, Gravano entered the United States Witness Protection Program.100 Gravano was one essential witness required to convict Gotti. Similarly, the ICC can start to use “lieutenants and underbosses”101 as the only witnesses to convict war criminals.

However, the issue is whether only calling lieutenants and underbosses as witnesses will be sufficient to convict defendants on crimes such as genocide and war crimes. It may not. The ICC may need to call more witnesses than just the defendants’ lieutenants and underbosses. This is especially true because the lieutenants and underbosses of war criminals may be criminals themselves and thus may not be credible witnesses. Moreover, there is a chance that the lieutenants will lie and testify against the defendants to avoid prosecution and to start a new life after relocation. Only calling essential witnesses, however, will at least be a step in the right direction for saving relocation resources on only a few witnesses.

V. Conclusion

The WITSEC will be an accurate and consistent performance indicator to measure the ICC’s success in ensuring adequate security for its witnesses. However, using the WITSEC as a performance indicator has its host of issues. For instance, the WITSEC is not an objective or a quantitative type of measurement. Nevertheless, issues may arise if the WITSEC is used as an objective test or a bright-line standard. Moreover, using the WITSEC may contain extrinsic factors that may be unaccounted for. Using the totality of circumstances approach and using a group of individuals to analyze the data can resolve these issues.

Finally, by measuring the ICC’s witness protection methods to the WITSEC’s, the ICC may not be as successful in its methods as it could be. There are numerous extrinsic factors that may be preventing the ICC from being able to successfully protect its witnesses. These factors include the ICC’s lack of a police force, lack of an area to relocate its witnesses to, and a lack of resources. More importantly, these obstacles prevent the ICC from using the primary method used by the WITSEC, which is relocation. Nevertheless, the ICC can employ the relocation method with accuracy by asking for resources from the states parties, asking for hands-on assistance from the states parties, and by only using essential witnesses for its trials. With these solutions, the ICC will be able to have a witness protection system that will be exceeding more effective than its system now.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
See, e.g., Emmanuel Igunza, Kenya ICC Witness Killing Haunts Eldoret Family, BBC News, Jan. 9, 2015, available online.

(killing of a witness under the ICC’s witness protection program);

ICC Prosecutors Accuse DR Congo Rebel of Witness Tampering, AFP, Nov. 11, 2016, [hereinafter DRC Tampering], available online.

(showing evidence of witness tampering in the Congo);

ICC Convicts DRC’s Former Vice President Bemba of Witness Tampering, DW, Oct. 19, 2016, [hereinafter Bemba Tampering], available online.

(showing evidence of witness tampering in the Congo);

Jonathan W. Rosen, Reporters, Witnesses Silenced ‘One by One’ with ICC Link Deadly in Kenya, Al Jazeera, Aug. 24, 2015, available online.

(showing evidence of witness silencing in Kenya). ↩
2.
See Press Release, FIDH, Termination of Ruto and Sang Case at the ICC: Witness Tampering Means Impunity Prevails over Justice Again (May 4, 2016), [hereinafter Termination], available online.

(“The systematic witness tampering and intimidation experienced in the Kenya cases has denied thousands of victims of the post-election violence the justice they rightfully deserve.”);

Rosen, supra note 1.

(“People connected to the international court proceedings against Kenyan leaders are turning up dead.”) ↩
3.
International Justice Monitor, Kenya Cases at the International Criminal Court, available online (last visited Jul. 3, 2017); Kenya’s ICC Trials, Amnesty Int’l (Sep. 16, 2013), available online. ↩
4.
International Justice Monitor, supra note 3. ↩
5.
Id. ↩
6.
See Human Rights Watch, ICC: Kenya Deputy President’s Case Ends (Apr. 5, 2016), available online; International Justice Monitor, supra note 3. ↩
7.
See Emma Batha, Kenya Urged to Help Women Raped During Post-Election Violence, Reuters, Feb. 15, 2016, available online; Human Rights Watch, supra note 6. There were devastating effects from the sexual violence such as the spread of HIV. See Batha, supra note 7; Lee D. Pyne-Mercier et al., The Consequences of Post-Election Violence on Antiretroviral HIV Therapy in Kenya, 23 AIDS Care 562 (2012), Taylor Francis paywall. ↩
8.
See Termination, supra note 2.

(stating that interference of the ICC’s witnesses played a “significant role in the lack of sufficient evidence presented to support the charges against the accused” Ruto and Sang);

ICC Drops Uhuru Kenyatta Charges for Kenya Ethic Violence, BBC News, Dec. 5, 2014, available online.

(stating the ICC stated witnesses have been bribed and intimidated in the President Kenyatta case);

Open Society Justice Initiative, Witness Interference in Cases Before the International Criminal Court (Nov. 2016), available online. ↩
9.
See Rosen, supra note 1. ↩
10.
See id. ↩
11.
Id. ↩
12.
Id. ↩
13.
See Rosen, supra note 1. There seems to be some confusion as to whether Meshack Yebei was a prosecution or defense witness. See, e.g., Ken Wafula, Ruto ICC Witness: Murdered by the State?, Pambazuka News, Mar. 26, 2015, available online. ↩
14.
See Rosen, supra note 1. ↩
15.
Id. ↩
16.
Id. ↩
17.
Id. ↩
18.
Kenneth Roth, Africa Attacks the International Criminal Court, NYR (Feb. 6, 2014), available online. ↩
19.
See DRC Tampering, supra note 1. ↩
20.
See Bemba Tampering, supra note 1. ↩
21.
Bemba Tampering, supra note 1; DRC Tampering, supra note 1. ↩
22.
See Bemba Tampering, supra note 1; DRC Tampering, supra note 1; Wairagala Wakabi, Ntaganda Lawyers Seek Stay of Proceedings as Witness Tampering Case Looms, Int’l Just. Monitor (Nov. 14, 2016), available online. ↩
23.
Wakabi, supra note 22; DRC Tampering, supra note 1. ↩
24.
Bemba Tampering, supra note 1. ↩
25.
Bemba Tampering, supra note 1; Wakabi, supra note 22. ↩
26.
Bemba Tampering, supra note 1. ↩
27.
Witness Security Program, U.S. Marshals, [hereinafter Witness Program], available online (last visited Jul. 3, 2017). ↩
28.
Witness Program, supra note 27; see Gabriel Falcon, Inside the Witness Protection Program, CNN, Feb. 16, 2013, available online. ↩
29.
Falcon, supra note 28; Jonathan Yenkin, Witness to Murder: Out of Fear, Many Americans Choose to Keep Silent, AP, Jun. 13, 1993, available online; Robert Sabbag, Too Tough to Die: Down and Dangerous with the U.S. Marshals (1992); Tarik Abdel-Monem, Foreign Nationals in the United States Witness Security Program: A Remedy for Every Wrong?, 40 Am. Crim. L. Rev. 1235, 1242 (2003), available online. ↩
30.
Abdel-Monem, supra note 29. ↩
31.
See, e.g., Jake Rossen, 12 Secrets of the Witness Protection Program, Mental Floss (Mar. 29, 2016), available online; Kevin Bonsor, How Witness Protection Works, How Stuff Works, available online (last visited Jul. 3, 2017); Witness Program, supra note 27. ↩
32.
Bonsor, supra note 31; Witness Protection Program FAQ, In Plain Sight, NBC Universal, [hereinafter Witness FAQ], available online (last visited Jul. 3, 2017). ↩
33.
Bonsor, supra note 31. ↩
34.
Id.; Witness Program, supra note 27. ↩
35.
Rossen, supra note 31. ↩
36.
Witness Program, supra note 27; Witness FAQ, supra note 32. ↩
37.
Bonsor, supra note 31; Rossen, supra note 31. ↩
38.
Rossen, supra note 31. ↩
39.
Bonsor, supra note 31; Witness FAQ, supra note 32. ↩
40.
Is Enough Being Done to Protect ICC Witnesses?, Global Just. (May 18, 2015), [hereinafter Enough Being Done?], available online; Witnesses, ICC, [hereinafter Witnesses], available online (last visited Jul. 3, 2017). ↩
41.
Enough Being Done?, supra note 40; Witnesses, supra note 40. ↩
42.
Id. ↩
43.
Id. ↩
44.
Witnesses, supra note 40. ↩
45.
Id. ↩
46.
Enough Being Done?, supra note 40; Witnesses, supra note 40. ↩
47.
Abdel-Monem, supra note 29; Falcon, supra note 28; Sabbag, supra note 29; Yenkin, supra note 29. ↩
48.
Bonsor, supra note 31; Witness FAQ, supra note 32. ↩
49.
Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922, available online; Raneta J. Lawson, Lying, Cheating and Stealing at Government Expense: Striking a Balance Between the Public Interest and the Interests of the Public in the Witness Protection Program, 24 Ariz. St. L.J. 1429, 1429 (1992), available online. ↩
50.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], available online. ↩
51.
Frank Newport, Presidential Election 2016: Key Indicators, Gallup, available online (last visited Jul. 3, 2017). ↩
52.
Gregory Krieg, How Did Trump Win? Here Are 24 Theories, CNN, Nov. 10, 2016, available online; Maeve Reston & Stephen Collinson, How Donald Trump Won, CNN, Nov. 9, 2016, available online. ↩
53.
See all authorities, supra note 29 and accompanying text. ↩
54.
See, e.g., Al Bashir Case, ICC, available online (last visited Jul. 3, 2017); Bemba Case, ICC, available online (last visited Jul. 3, 2017); Gbagbo and Blé Goudé Case, ICC, available online (last visited Jul. 3, 2017); Kenyatta Case, ICC, available online (last visited Jul. 3, 2017). ↩
55.
One could argue that an organized crime leader could have more resources, especially if part of a large criminal syndicate. However, a president of a country would likely have the entire country’s army within his reach. ↩
56.
See Al Mariam, Kenyatta at the ICC: Is Justice Deferred, Justice Denied?, ICC Forum (Jan. 26, 2014), available online; Simon Allison, After a Bruising Year, the ICC Plots a Road to Redemption, Daily Maverick, Dec. 1, 2016, available online. ↩
57.
In this case we are not using the 100% success rate as a bright-line standard. Instead, the 100% success rate is being used as a factor in the totality of circumstances analysis. ↩
58.
Murder Rates Nationally and by State, DPIC, available online (last visited Jul. 3, 2017). ↩
59.
Id. ↩
60.
Id. ↩
61.
International Criminal Court, Understanding the International Criminal Court (Aug. 22, 2013), available online, archived; What Does the International Criminal Court Do?, BBC News, Jun. 25, 2015, available online. ↩
62.
Witness Program, supra note 27. ↩
63.
See Alex Mayyasi, What Happens When You Enter the Witness Protection Program?, Priceonomics, Aug. 4, 2014, available online; Colin Nissan, You Are Now Under Witness Protection, The New Yorker (Aug. 20, 2013), available online; Melissa, What Really Happens When Someone Enters the Witness Protection Program, Today I Found Out (Mar. 30, 2015), available online. ↩
64.
See all authorities, supra note 29 and accompanying text. ↩
65.
Bonsor, supra note 31; Witness FAQ, supra note 32. ↩
66.
See, e.g., id.; Rossen, supra note 31; Witness Program, supra note 27. ↩
67.
See, e.g., notes and accompanying text: supra note 1; supra note 2; supra note 8. ↩
68.
See, e.g., id. ↩
69.
See, e.g., supra note 40 and accompanying text. ↩
70.
See id. ↩
71.
Id. ↩
72.
Id. ↩
73.
See Bonsor, supra note 31. ↩
74.
Witness Program, supra note 27; Witness FAQ, supra note 32. ↩
75.
Bonsor, supra note 31; Rossen, supra note 31. ↩
76.
See all authorities, supra note 29 and accompanying text. ↩
77.
See, e.g., notes and accompanying text: supra note 1; supra note 2; supra note 8. ↩
78.
See, e.g., supra note 40 and accompanying text. ↩
79.
Al Mariam, Saving the ICC: A Proposal for a Witness Protection Program, ICC Forum (Apr. 6, 2014), available online. ↩
80.
See Witness Program, supra note 27. ↩
81.
See id.; Witness FAQ, supra note 32. ↩
82.
See, e.g., supra note 49 and accompanying text. ↩
83.
See U.S. Marshals, U.S. Marshals Service Talks WitSec to the World (Aug. 2006), available online. ↩
84.
Id. ↩
85.
See supra note 61 and accompanying text. ↩
86.
Rome Statute, supra note 50. ↩
87.
See supra note 56 and accompanying text. ↩
88.
United States of America, Nations Encyclo., available online (last visited Jul. 3, 2017). ↩
89.
See, e.g., notes and accompanying text: supra note 1; supra note 2; supra note 8. ↩
90.
See supra note 56 and accompanying text. ↩
91.
Kenya to Probe Death of Defense Witness in ICC Trial, Reuters, Jan. 7, 2015, available online. ↩
92.
See notes and accompanying text: supra note 1; supra note 2; supra note 8. ↩
93.
See supra note 61 and accompanying text. ↩
94.
See id. at 11–12, 16–17. ↩
95.
See id. at 11–12, 16–17. ↩
96.
The States Parties to the Rome Statute, ICC, available online (last visited Jul. 3, 2017). ↩
97.
See Falcon, supra note 28. ↩
98.
See, e.g., Marcus Baram, Start Snitching: Inside the Witness Protection Program, ABC News, Oct. 26, 2007, available online. ↩
99.
See Mariam, supra note 79. ↩
100.
Id. ↩
101.
Id. ↩

isaac.brown
6216
July 10, 2017
12:32 pm

Measuring Complementarity: Defining the Effectiveness of the International Criminal Court Through Domestic Proceedings

One measure of the International Criminal Court’s leadership and management’s effectiveness should be the extent to which states themselves are prosecuting individuals for war crimes, genocide, and crimes against humanity.

I. Introduction

In addition to measuring factors intrinsic to the International Criminal Court (“ICC” or “Court”), there are a number of extrinsic factors which could also be used to assess performance. One of these is complementarity, the extent to which states parties and states not party to the Rome Statute are prosecuting the individuals within their jurisdiction for the commission of crimes which could fall into the ICC’s jurisdiction. To examine why complementarity is a valuable measure of the Court’s effectiveness, I look first at what exactly is meant by complementarity and why it is a desirable feature of the Rome Statute system. I then look at previous efforts to measure domestic prosecutions and what tools the ICC has available to measure complementarity. Finally, I advocate for using the Court’s legal rules and all situations before the Court where complementarity comes into play as a measure of the Court’s leadership and management’s effectiveness. Legal rulings which result in a case or a situation being inadmissible due to domestic efforts to investigate and prosecute those responsible for international crimes should be considered successes for the Court and measures of its effectiveness.

II. The Contours of the Court’s Complementarity Regime

Complementarity is inherent in the Rome Statute. To date, the Court has had the opportunity to rule on some, but not all, of the legal features of the Rome Statute’s complementarity regime. Complementarity is also desirable for the states parties to the Rome Statute and to the Court itself.

A. Legal Requirements

The Preamble to the Rome Statute states that “the International Criminal Court established under this statute shall be complementary to national criminal jurisdictions”.1 Article 1 reiterates that the Court’s jurisdiction “shall be complementary to national criminal jurisdictions.”2

The Prosecutor is obligated to initiate an investigation unless “she determines that there is no reasonable basis to proceed”.3 One of the factors she is required to consider prior to initiating an investigation is whether “[t]he case is or would be admissible under article 17”.4 As such, article 17 makes two appearances in the process. First, the Prosecutor considers admissibility when determining whether or not to open an investigation; a problem with applying article 17 at this stage of the proceedings is that there is not yet the narrowed scope which would be necessary for making a case.5 The Prosecutor has adopted a solution whereby admissibility is analyzed relative to cases which would likely arise based on the information available from the preliminary examination.6 The second instance where article 17 comes into play is when admissibility of a case is challenged by an accused, a state which has jurisdiction, or a state which has accepted article 12(d) jurisdiction of the court,7 such challenges will be discussed further below.

Article 17 fleshes out the jurisdictional question by requiring the Court to rule a case inadmissible in four situations.

Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where: (a) the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; (b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court.8

The first three situations are of greatest import when determining whether a case is inadmissible on complementarity grounds, gravity is a separate requirement. Essentially, if a state is or has engaged in proceedings against an individual, and those proceedings are or were genuine, the case is inadmissible before the ICC.

When the Prosecutor decides to open an investigation under article 15 she is obligated by article 18 to “notify all States Parties and those States which…would normally exercise jurisdiction over the crimes concerned.”9 After receiving notification, within one month, a state “may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts…which relate to the information provided in the notification”.10 To date, no state has challenged the opening of an investigation. Were a state to do so, the prosecutor would be required to “defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation.”11 While no state has yet invoked article 18 to forestall an investigation, it is another tool available for advancing the aims of complementarity. With the ICC operating to complement national jurisdictions, article 18 allows a state to assert their jurisdiction before any warrants have issued or accused been identified.12

The state’s assertion and the Pre-Trial Chamber’s ruling do not end the matter, there is the possibility of expedited appeal to the Appeals Chamber,13 periodic review by the Prosecutor,14 and the ability to “request that the State concerned periodically inform the Prosecutor of the progress of its investigations and any subsequent prosecutions.”15 With additional ability to monitor the situation after an article 18 invocation, the Prosecutor would be in a better position to assess the admissibility of the cases being brought in national proceedings.

After an investigation is opened and a case is brought, article 19 allows the Court itself to determine admissibility.16 Challenges to admissibility at this stage may be brought by the accused or the state which has jurisdiction.17 Challenges by both the accused and the state have occurred and the seminal cases governing admissibility before the court on complementarity grounds are discussed below.

Regarding the overall structure of the admissibility test in article 17, in The Prosecutor v. Katanga the Appeals Chamber interpreted article 17(1)(a) and (b) to require a two-part test. The first part assesses whether or not there are “ongoing investigations or prosecutions, or…whether there have been investigations in the past, and the State having jurisdictions has decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to…examine the question of unwillingness and inability.”18 The defendant, Germain Katanga, had argued that the Democratic Republic of the Congo’s (“DRC”) decision not to investigate him for certain conduct and instead turn him over to the ICC demonstrated their unwillingness to prosecute; unwillingness which should be examined under article 17(2)’s test for unwillingness.19 The Appeals Chamber determined that there were no ongoing investigations or prosecutions, that there was no decision not to prosecute following an investigation, and therefore that the question of unwillingness need not be reached.20 In fact, the DRC’s decision to close their investigation into Mr. Katanga was made in order to facilitate his transfer to the Court for the Court to exercise its jurisdiction.21 The Appeals Chamber affirmed that the case was admissible before the ICC because none of the requirements of article 17(1) were met.22

Regarding the scope of the case under investigation in the national proceedings, in The Prosecutor v. Gaddafi the Appeals Chamber applied a test they had establish in The Prosecutor v. Ruto to determine whether or not the domestic Libyan investigation covered the same case as that being brought by the ICC Prosecutor. “[t]he national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.”23 “What is required is a judicial assessment of whether the case that the State is investigating sufficiently mirrors the one that the Prosecutor is investigating.”24 The Pre-Trial Chamber had ruled that in the Gaddafi case, Libya had not given enough information for them to determine what conduct the national investigation was actually investigating.25

A state may be considered unwilling for article 17 purposes if “proceedings were or are being undertaken…for the purpose of shielding the person concerned from criminal responsibility.”26 Unwillingness could also be found if there is “an unjustified delay inconsistent with an intent to bring the person concerned to justice.”27 Finally, unwillingness may also be found if “[t]he proceedings were not or are not being conducted independently or impartially, and…in a manner which…is inconsistent with an intent to bring the person concerned to justice.”28 In The Prosecutor v. Al-Senussi, with regard to the same case test, the Appeals Chamber affirmed the Pre-Trial Chamber.29 The Pre-Trial Chamber had determined that the Libyan investigation covered the same events underlying the charges brought by the ICC Prosecutor.30 The Appeals Chamber found that the defendant’s lack of counsel during the investigatory phase of the domestic proceedings did not demonstrate unwillingness because the question is not whether human rights law and domestic law are respected, but rather whether the deprivation was so egregious as “to be inconsistent with an intent to bring [Mr. Al-Senussi] to justice.”31 The Appeals Chamber noted that article 17(2)(a)’s reference to shielding the accused from criminal responsibility suggests that the other two sub-paragraphs of article 17(2) are not to guarantee a fair trial, but to put an end to impunity.32 Lack of counsel by itself, then, does not demonstrate that a state is unwilling to genuinely carry out an investigation.

Article 17(3) deals with the inability prong, stating that ‘the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.”33 This issue was confronted in Al-Senussi where the Appeals Chamber found that the government had custody of the accused by controlling his detention facility.34 The Appeals Chamber also affirmed the Pre-Trial Chamber’s decision that despite a poor security situation for the judicial system at large, “the proceedings in Mr. Al-Senussi’s case had not so far been prejudiced by security challenges”.35 the Appeals Chamber’s decision in this case had the effect of confirming the Pre-Trial Chamber’s decision that the case against Al-Senussi was inadmissible before the ICC.36

Complementarity under the ICC system appears when the OTP considers admissibility during a preliminary examination and before opening an investigation. Complementarity may also play a role in an article 18 challenge by a state with jurisdiction to the decision by the ICC to open an investigation. The decisions on whether or not to open an investigation and the article 18 challenges concern the likely charges based on the information available at the time. After the investigation is opened, a case may be brought. At this stage, the state having jurisdiction or the individual accused may challenge the admissibility of the case before the ICC. A case is inadmissible at this stage when the same case is under investigation, prosecution, or been previously prosecuted by a state with jurisdiction. Those investigations, prosecutions, decisions not to prosecute, or prior prosecutions do not render the case inadmissible if the state was unable or unwilling genuinely to prosecute. The Court’s complementarity jurisprudence continues to develop, with some areas as yet unexplored.37 Complementarity underlies the ICC system, above is a summary of the legal rules surrounding how complementarity functions in practice, the next section discusses why a complementary ICC is desirable.

B. The Desirability of a Complementary Court

The ICC complements national jurisdictions and there are good reasons for this. A complementarity regime respects state sovereignty. The ICC’s limited resources make it impossible for the Court to hear cases of every alleged perpetrator of an international crime so national jurisdictions have a role to play in ending impunity. National jurisdictions may be better situated to investigate and prosecute perpetrators in their own states. Following a period of armed conflict or civil strife, national proceedings may be better at restoring faith in domestic institutions among the local population than proceedings in The Hague. Complementarity does have some drawbacks, but the benefits of local proceedings often outweigh them and the court can take some actions to mitigate them.

As a treaty regime, the Rome Statute system relies on voluntary accession to the treaty with limited circumstances where the Court can operate outside the geographic and national limits of the states parties.38 States thus give up some sovereignty when they agree to be a party to the Rome Statute. States give up less sovereignty to a complementary court than they would to a court with primary jurisdiction. Under the Rome Statue system, the states have primary jurisdiction and cases are inadmissible before the court when article 17’s requirements are met.39 The state, therefore, has the ability to preempt the Court by investigating a situation or bringing a case domestically. For states which value their sovereignty, the complementarity of the Court to the national jurisdiction may encourage signing the Rome Statute and accepting the Court’s jurisdiction, such as it is.40 “The greater the number of states parties, the more legitimacy the ICC will have, which, in turn, allows the Court to contribute more to accountability for international crimes globally.”41 There are currently 124 states parties to the Rome Statute.42 By respecting national sovereignty and allowing for domestic prosecutions, the Court can encourage more states to join and further increase the Court’s legitimacy.

The Court also has limited resources at its disposal. Complementarity extends the reach of international criminal law by enabling domestic jurisdictions to hold perpetrators of international crimes accountable. The gravity requirement in article 17 suggests a threshold of harm below which the Court will not prosecute.43 International criminal courts have traditionally been designed to prosecute those most responsible for serious crimes, but there will often be people with some responsibility for international crimes who do not qualify as most responsible.44 This is not to say that those less responsible should not be prosecuted, but that there should be additional fora available to try those who are not the most responsible but still bear criminal responsibility.45

In some situations, the national jurisdiction may be better situated to prosecute.46 Domestic trials work in the same language as the witnesses, evidence from crime scenes is more readily to hand and the local population is better able to attend a proceeding held locally than one held in The Hague.47 The better accessibility of domestic proceedings may also lead to cost savings in both time and money favoring domestic proceedings over international ones.

With proceedings closer to home, not only are the problems of language barriers and access to evidence mitigated, but it may be possible to restore some faith in local courts among the local population. ICC crimes are often committed during armed conflict and even when they are not, they are considered the “most serious crimes.”48 In armed conflicts and periods of civil strife, institutions can break down and one of the goals of the ICC is to promote peace and stability in the world.49 Empowering local institutions can help to restore their legitimacy in the eyes of local populations affected by international crimes.50

Article 18 envisions a state party or any state challenging the Prosecutor’s decision to open an investigation on the grounds that they are already investigating the acts in question.51 Article 19 covers challenges to the admissibility of a case and also envisions a challenge by a state.52 In these situations, where a state is challenging a decision by the Prosecutor, the state is at odds with the ICC.53 The tension between states parties and the ICC has recently come to a head when Burundi, South Africa, and Gambia announced their decisions to withdraw from the Rome Statute over a perceived bias towards prosecuting Africans.54 Moreover, complementarity ensures that the ICC will intervene most often in states with poorly developed legal systems since those states are more likely to be “unable genuinely to carry out the investigation or prosecution.”55 The disparity between intervention in states with poorly developed legal systems and more advanced, usually Western, states undermines the Court’s legitimacy and may result in more states parties withdrawing from the Rome Statute.

The other problem with complementarity is that, taken to the extreme, it results in no cases before the Court. If every state is carrying out genuine domestic proceedings against those accused of international crimes, then the Court’s work will simply be to monitor domestic proceedings and comment on the national jurisdictions willingness and ability to prosecute. The Court’s inaction may be seen as a weakness when compared to more active international courts such as the ICTY and ICTR, despite such a situation being fully in compliance with the Rome Statute and the Court’s mandate.56 Inaction may also appear undesirable for the Court itself. While complementarity and respect for national proceedings may lead more states to sign the Rome Statute and accept the jurisdiction of the Court, a model where the Court remains essentially inactive may undermine the legitimacy that widespread acceptance would garner.57 Robust domestic proceedings are desirable but they do come at some cost to the ICC as an institution.

Complementarity is central to the structure of the Rome Statute system where states parties are the primary actors in bringing perpetrators of international crimes to justice. Only when those domestic proceedings are impossible or not genuine should the ICC intervene. Complementarity comes at some cost to the ICC’s legitimacy but respects national proceedings, acknowledges resource constraints, and enables more individuals accused of international crimes to be investigated and tried.

III. Challenges in Measuring Complementarity

To date there have been three detailed studies of criminal prosecutions for human rights violations, all three have focused on countries undergoing democratic transition. The first, the Transitional Justice Data Base Project has been working since 2005 and has gathered data on trials, truth commissions, amnesties, reparations, and lustration policies from 1970 to 2007.58 The database was coded for the type of mechanism used, the level of the mechanism (domestic, international, or hybrid), and the target of the mechanism (state and non-state agents).59 They found that from 1970 to 2007 that there were 258 domestic prosecutions for numerous transitional justice related crimes including coup attempts, genocide, war crimes, crimes against humanity, and support for terrorism.60 The project used data from Keesing’s World News Archive, was led by three scholars, supported by 24 research assistants and received funding from a number of sources.61 The second was the Human Rights Prosecutions Data Base which used the U.S. State Department’s Country Report on Human Rights Practices to determine that from 1974 to 2006 there were 1,120 country-years with trial activity for human rights violations.62

The most recent effort at cataloging transitional justice events generally as well as criminal trials specifically is the ongoing work of the Transitional Justice Research Collaborative. Their work, beginning in 2010, has covered human rights prosecutions, truth commissions, and amnesty laws.63 In addition, they have been gathering data on civil trials, vetting and lustration, reparations, and traditional justice mechanisms since 2012.64 Using U.S. State Department Human Rights Reports, Keesing’s Record of World Events, and Tricia D. Olsen et al.’s Transitional Justice in Balance they compiled a list of 7,523 individuals tried in 4,686 trials in 153 states.65 They then performed additional research into each instance to develop the details of the case.66 Employing 51 different researchers from 2010 to the present, they have been able to build a searchable database of human rights trials and the other transitional justice mechanisms from 1970 to the present.67 Despite the extent and usefulness of the Collaborative’s work, they acknowledge that it is not a complete record. “[D]espite these large numbers, we cannot know how many cases we have overlooked, or how much retrievable information is missing from the records. This is not necessarily a problem specific to our data, but a problem with all event history data.”68 While the work of all of these projects is extremely useful in understanding democratic transition, something which often intersects with the work of the ICC, the data is difficult to gather and necessarily not comprehensive. Moreover, it does not map perfectly onto the work of the ICC as it is gathered and used for many other purposes as well.69

Any effort at gathering data on domestic prosecutions for crimes which could be within the domain of the ICC will face a number of challenges. Detailed research into each individual case, as the three projects above illustrate, can mitigate those challenges but also increase the cost of the effort. Challenges include the tapestry of different implementing legislation, charging decisions by prosecutors, and the difficulty of determining what qualifies as a prosecution for one of the core crimes across different jurisdictions and types of legal systems.70 70 states have national ICC implementation legislation.71 Any domestic prosecution under such legislation would easily signal to the world at large and to the ICC in particular that states are undertaking domestic prosecutions for the ICC’s core crimes. The Genocide Convention requires contracting parties to that instrument “to enact, in accordance with their respective Constitutions, the necessary legislation…to provide effective penalties for persons guilty of genocide.”72 Any state prosecuting persons for genocide under their domestic implementing legislation will likewise signal to the international community and the ICC that they are prosecuting individuals for genocide. There are also states which have incorporated references to international law in their domestic criminal code without using specific treaties.73 Much as the above situations, any prosecution under such a provision, depending on the specific case, may signal a domestic prosecution for an international crime. More problematic are states which criminalize international crimes using their existing criminal and military codes.74 Under such a system, it may be difficult for an outside observer to determine whether a state is in fact prosecuting for a genocide, crime against humanity, or war crime because it is not labeled as such.75 Regardless of whether a state has laws on the books for international crimes, prosecutorial discretion allows for a determination of which charges to bring. A charge for conduct which may constitute war crimes in a jurisdiction which has war crimes legislation may be brought as a simple criminal case or a case under military law.76 The different ways of charging conduct which overlaps with the ICC’s jurisdiction makes it difficult to determine which prosecutions implicate complementarity and which do not.

Currently, the ICC Office of the Prosecutor (“OTP”) does collect data on domestic legal proceedings as part of preliminary examinations when such information is available.77 At the preliminary examination stage, the OTP does not have the power to demand cooperation from the situation state but can still request information.78 The four situations currently under preliminary examination and in the process of deciding admissibility are Afghanistan, Colombia, Guinea, and Nigeria.79

In Afghanistan, the OTP is examining alleged war crimes committed by the Taliban, the Haqqani Network, the Afghan government and U.S. forces as well as crimes against humanity by the Taliban and the Haqqani Network.80 The OTP found that two members of forces opposed to the Afghan government had been tried and convicted, though they could not determine what the underlying conduct or charges were due to the Afghan government having not yet provided further information.81 The situation is also complicated by a general amnesty which shields a number of opposition groups from prosecution.82 The OTP found that a third to half of conflict-related detainees in Afghan government custody had suffered ill-treatment and two people had been prosecuted for alleged abuses.83 Using information provided to the Committee Against Torture, and public statements by the US Department of Justice, the OTP determined that seven individuals had been subject to court martial for ill-treatment in Afghanistan and a two year DOJ investigation into ill-treatment yielded decisions not to prosecute due to insufficiency of evidence.84 The information on which the OTP relied in coming to these conclusions about potential cases in Afghanistan was open source; in fact, the Afghan government was apparently not forthcoming when the OTP requested information about proceedings in its jurisdiction.85

In Colombia, the preliminary examination concerns crimes against humanity and war crimes committed in the context of the non-international armed conflict between the government and various rebel groups.86 The OTP determined, based on information submitted by the Colombian government, that Colombian courts had convicted 961 members of the armed forces for extrajudicial killings.87 There were also ongoing investigations into 2,241 additional cases.88 Included were a number of officers at different levels as well as commanding officers.89 43 individuals were convicted of forced displacement,90 and one paramilitary leader was convicted as an indirect perpetrator for various sexual and gender based crimes.91

The OTP is examining the situation in Nigeria where they have identified eight cases of war crimes and crimes against humanity, “six for conduct by Boko Haram and two for conduct by the Nigerian security forces.”92 The government has provided investigative files and reports to the OTP, but the OTP has not yet assessed the admissibility of those cases.93 The Nigerian situation presents one of the problems identified above, namely the lack of any implementing legislation for the Rome Statute.94 Any charges brought against Boko Haram members would have to be brought under Nigerian terrorism legislation95 and charges against security forces members would have to be charged under military codes.96

In Guinea, on September 28, 2009, members of the Guinean presidential guard and gendarmerie entered a stadium in Conakry and opened fire on a protesting crowd, “at least 156 people were killed or disappeared and at least 109 were victims of rape and other forms of sexual violence”.97 In October 2009, the Prosecutor opened a preliminary examination into, inter alia, torture, killings, disappearances, and sexual violence as crimes against humanity.98 In February 2010, the Guinean government launched an investigation into the events.99 14 people have been indicted, including high government officials and a former head of state; trials are expected to begin in early 2017.100

These four situations remain under preliminary examination and they have varying levels of government action and cooperation with the OTP. They also demonstrate the difficulties of discovering domestic proceedings in some states, as well as determining how domestic criminal codes map onto the crimes within the ICC’s jurisdiction. Private actors can assemble databases of domestic proceedings for what may be international crimes at some effort and expense. The Court has tools available to gather open source information as well as the ability to request information from states under preliminary examination. While the states under preliminary examination are not obligated to cooperate with the ICC,101 some have done so as demonstrated by the situations in Colombia, Nigeria, and Guinea. Data on complementarity are available widely and additional data are available to the Court upon request. There are challenges in collecting the information but the Court is well-situated to do so and complementarity should be considered as one of the measures of the ICC’s effectiveness.

IV. Recommendation

A key measure of the ICC’s effectiveness should be the extent to which it encourages domestic prosecutions for the core crimes. As far as increasing complementarity, this can be done through capacity building, hybrid tribunals, establishing an institute, and other methods of so-called “positive complementarity.”102 When it comes to measuring complementarity, the solution is less active and less resource intensive. As discussed above, the academic studies into transitional justice are the best tools currently available to determine whether or not national jurisdictions are prosecuting individuals involved in the commission of the ICC’s core crimes. As useful as these data are for multitudes of academic questions, the question of measuring the effectiveness of the ICC’s leadership and management through the lens of complementarity is a narrower issue.

As shown in the discussion of the four situations in the admissibility phase of the preliminary examination, the Court is currently gathering information on domestic efforts to prosecute perpetrators of international crimes. Those domestic efforts should be one of the measures of the Court’s effectiveness.103 One of the traditional measures of a court’s success is how many cases it can try.104 Given how the Court is situated within the Rome Statue system, cases tried is not a complete measure of the Court’s effectiveness.105 “This combination of unrealistic hopes and limited capacity raises the real prospect that the Court will be seen as a failure only a few years after its creation.”106

The Court’s success should not only be measured by cases it tries, but by the cases it does not.107 A situation where the Prosecutor decides not to open an investigation based on complementarity is a success for the Court and for international justice. An investigation successfully challenged by a state under article 18 is a success for the Court. When a state or an individual challenges the admissibility of a case under article 19 on complementarity grounds and succeeds, the goal of ending impunity for the perpetrators of the most serious crimes is advanced. At this early stage, the only data are of article 19 challenges since no states have invoked article 18 and no preliminary examination has ended based on complementarity. As decisions not to investigate on complementarity grounds and article 18 challenges emerge, they should be recorded and publicized as examples of the Court working effectively. Decisions that cases are inadmissible after a successful article 19 challenge should likewise be lauded as successes for the Court and measured as such.

Though they are still under preliminary examination, the judicial actions by the national authorities following the events in Guinea and Colombia should serve as encouraging developments for the Court. The fact that Colombia has tried thousands of individuals for crimes related to a preliminary examination and that Guinea anticipates a bringing a criminal case in early 2017 are data points that serve to demonstrate the ICC’s effectiveness. It may be difficult to disentangle whether the Court is the driving force behind domestic proceedings, but domestic proceedings are an indicator of whether the Court is effective or not.108 The Court has information at its disposal to determine when a situation, investigation, or case does not go forward due to complementarity. This information should serve as a measure of the Court’s effectiveness as proceedings move forward.

V. Conclusion

Complementarity goes to the heart of the Rome Statute system. States parties are actors within that system and are the primary actors in bringing those accused of the ICC’s core crimes to justice. While the traditional measure of a successful court is the volume of cases which it can conclude, the ICC’s complementary status renders that measure less useful. The Court’s effectiveness can be measured by the cases that it does not bring because a state is already bringing them. At this stage in the Court’s history, there are several complementarity avenues which have not yet been tested. When they are, and when they result in a case being investigated and prosecuted at the national level in lieu of in the ICC, those cases should serve as a measure of the Court’s effectiveness and success in ending impunity and bringing those most responsible for international crimes to justice.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute] at pmbl., available online. ↩
2.
Id. art. 1. ↩
3.
Id. art. 53(1). ↩
4.
Id. art. 53(1)(b). ↩
5.
Office of the Prosecutor, International Criminal Court, Policy Paper on Preliminary Examinations ¶ 44 (Nov. 2013), available online, archived. ↩
6.
Id. ↩
7.
Rome Statute, supra note 1, art. 19(2). ↩
8.
Id. art. 17(1); Id. art. 20(3) deals with ne bis in idem or double jeopardy. ↩
9.
Id. art. 18(1); see also David Scheffer, Maximizing Opportunities to Deter Further Atrocity Crimes, in Contemporary Issues Facing the International Criminal Court 220, 222–224 (Richard H. Steinberg ed., 2016), earlier version (Oct. 6, 2011) available online.

(calling for the Prosecutor to notify states of the opening of an investigation in a way that encourages them to open domestic proceedings into the situation). ↩
10.
Rome Statute, supra note 1, art. 18(2). ↩
11.
Id. ↩
12.
See Scheffer, supra note 9, at 222. ↩
13.
Rome Statute, supra note 1, art. 18(4). ↩
14.
Id. art. 18(3). ↩
15.
Id. art. 18(5). ↩
16.
Id. art. 19(1). ↩
17.
Id. art. 19(2). ↩
18.
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC-01/04–01/07 OA 8, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ¶ 78 (Sep. 25, 2009), available online [hereinafter Prosecutor v. Katanga]; see also Paul Seils, Handbook on Complementarity: An Introduction to the Role of National Court and the ICC in Prosecuting International Crimes, 42–44 (ICTJ, 2009), available online. ↩
19.
The Prosecutor v. Katanga, supra note 18, ¶ 62. ↩
20.
Id. ¶¶ 80–82. ↩
21.
Id. ¶ 80. ↩
22.
Id. ¶ 116. ↩
23.
In the Case of the Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11–01/11 OA 4, Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi,” ¶ 60 (May 21, 2014), available online. ↩
24.
Id. ¶ 73. ↩
25.
Id. ¶ 86. ↩
26.
Rome Statute, supra note 1, art. 17(2)(a). ↩
27.
Id. art. 17(2)(b). ↩
28.
Id. art. 17(2)(c). ↩
29.
In the Case of the Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11–01/11 OA 6, Judgment on the appeal of Mr. Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled “Decision on the admissibility of the case against Abdullah Al-Senussi,” ¶ 94 (Jul. 24, 2014), available online. ↩
30.
Id. ¶ 86. ↩
31.
Id. ¶ 190. ↩
32.
Id. ¶¶ 217–218. ↩
33.
Rome Statute, supra note 1, art. 17(3). ↩
34.
The Prosecutor v. Al-Senussi, supra note 29, ¶ 274. ↩
35.
Id. ¶¶ 282, 287. ↩
36.
Press Release, ICC, ICC Pre-Trial Chamber I Decides that the Al-Senussi Case is to Proceed in Libya and is Inadmissible Before the ICC (Oct. 11, 2013), available online. ↩
37.
There has yet to be a challenge based on article 18; also, the Prosecutor has yet to decide to close a preliminary examination without opening an investigation based on complementarity issues. ↩
38.
Seils, supra note 18, at 7. Rome Statute, supra note 1, art. 12(3).

(allowing a state not a party to the Rome Statute to accept the jurisdiction of the Court for limited circumstances without becoming a state party);

Rome Statute, supra note 1, art. 13(b).

(allowing the Court to exercise jurisdiction with respect to a situation “referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations”). ↩
39.
Rome Statute, supra note 1, art. 17. ↩
40.
Linda E. Carter, The Future of the International Criminal Court: Complementarity as a Strength or a Weakness?, 12 Wash. U. Global Stud. L. Rev. 451, 459 (2013), available online. ↩
41.
Id. ↩
42.
Coalition for the International Criminal Court, available online (last visited Dec. 12, 2016). ↩
43.
Rome Statute, supra note 1, art. 17(1)(d). ↩
44.
Id. pmbl.; Carter, supra note 40, at 459. ↩
45.
Carter, supra note 40, at 460. ↩
46.
Seils, supra note 18, at 8. ↩
47.
Id. ↩
48.
Rome Statute, supra note 1, pmbl. ↩
49.
Id. ↩
50.
Seils, supra note 18, at 8. ↩
51.
Rome Statute, supra note 1, art. 18(2). ↩
52.
Id. art. 19(2)(b)-(c). ↩
53.
Carter, supra note 40, at 457. ↩
54.
Abraham Joseph, Why Did South Africa, Burundi, and Gambia Decide to Leave the International Criminal Court?, The Wire, Nov. 1, 2016, available online. ↩
55.
Carter, supra note 40, at 458; Rome Statute, supra note 1, art. 17(1)(a). ↩
56.
Carter, supra note 40, at 455. ↩
57.
Id.; Payam Akhavan, The Rise, and Fall, and Rise, of International Criminal Justice, 11 J. Int’l Crim. Just. 527, 532 (Jul. 2013), Oxford Academic paywall, EBSCO Host paywall. ↩
58.
Leigh A. Payne et al., Transitional Justice Data Base Project (2010), available online (last visited Dec. 6, 2016). ↩
59.
Leigh A. Payne et al., Data, Transitional Just. Data Base Proj., available online (last visited Dec. 6, 2016).

(Click on “Data” at top of page). ↩
60.
Id.

(search for “Mech. Type: Trial”; “Mech. Level: Domestic”; “Target: Non-State and State Agents”; “Dates: From year 1970 to year 2007”). ↩
61.
Payne et al., supra note 58. ↩
62.
Kathryn Sikkink, Leigh A. Payne, Geoff Dancy & Bridget Marchesi, Human Rights Prosecutions Coding Manual 3 (Transitional Just. Research Collaborative, rev. Jan. 2014), available online. ↩
63.
About, Transitional Just. Research Collaborative, available online (last visited Dec. 6, 2016). ↩
64.
Id. ↩
65.
Frequently Asked Questions, Transitional Just. Research Collaborative, available online (last visited Dec. 6, 2016). ↩
66.
Id. ↩
67.
Browse Records, Transitional Just. Research Collaborative, available online (last visited Dec. 6, 2016); People, Transitional Just. Research Collaborative, available online (last visited Dec. 6, 2016). ↩
68.
Frequently Asked Questions, supra note 65. ↩
69.
Findings, Transitional Just. Research Collaborative, available online (last visited Dec. 6, 2016); see also Geoff Dancy & Florencia Montal, Unintended Positive Complementarity: Why International Criminal Court Investigations Increase Domestic Human Rights Prosecutions, Am. J. Int’l L. (forthcoming 2017), SSRN paywall. Earlier version (Jan. 20, 2015), available online, archived.

(using transitional justice data from DRC, Uganda, Central African Republic, Kenya, Côte D’Ivoire, and Sudan to show that the ICC’s opening of an investigation in a situation state increases the rate of domestic prosecutions and convictions for human rights violations). ↩
70.
Philipp Kastner, Domestic War Crimes Trials: Only for “Others”? Bridging National and International Criminal Law, 39 UWA L. Rev. 29, 34 (2015), available online, archived. ↩
71.
Coalition For The International Criminal Court, supra note 42. ↩
72.
Convention on the Prevention and Punishment of the Crime of Genocide, art. V, Dec. 9 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277 , available online. ↩
73.
Kastner, supra note 70, at 34. ↩
74.
Id. ↩
75.
Carter, supra note 40, at 461 n.42. ↩
76.
Kastner, supra note 70, at 35–36.

(discussing American proceedings surrounding the massacre at My Lai and proceedings regarding prisoner abuse at Abu Ghraib, an Australian case involving the killing of Afghan civilians, and a Canadian case involving an officer killing an enemy fighter who had been rendered hors de combat; in each instance there were war crimes statutes available but the cases were handled through the respective military justice systems). ↩
77.
Policy Paper on Preliminary Examinations, supra note 5, ¶ 31. ↩
78.
Id. ↩
79.
Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2016 (Nov. 14, 2016), available online, archived; three preliminary examinations have closed with a decision not to initiate an investigation, these are Venezuela, South Korea, and Honduras. Not one of those decisions was based on Article 17 admissibility issues. Preliminary Examinations, ICC, available online (last visited Dec. 6, 2016). ↩
80.
Report on Preliminary Examination Activities 2016, supra note 79, ¶ 198. ↩
81.
Id. ¶ 217. ↩
82.
Id. ↩
83.
Id. ↩
84.
Id. ¶¶ 220–221. ↩
85.
Id. ¶ 217. ↩
86.
Id. ¶ 232. ↩
87.
Id. ¶ 243. ↩
88.
Id. ↩
89.
Id. ¶¶ 243–244. ↩
90.
Id. ¶ 245. ↩
91.
Id. ¶ 249. ↩
92.
Id. ¶ 286. ↩
93.
Id. ¶ 301. ↩
94.
Id. ¶ 299. ↩
95.
Id. ¶ 299. ↩
96.
Id. ¶ 300. ↩
97.
Id. ¶ 267; Corinne Dufka, Peter Bouckaert, Aloys Habimana & Matthew Wells, HRW, Bloody Monday: The September 28 Massacre and Rapes by Security Forces in Guinea (Dec. 17, 2009), available online.

(providing a detailed account of the events at the Stadium on September 28, 2009 and the international and domestic response in the following weeks). ↩
98.
Report on Preliminary Examination Activities 2016, supra note 79, ¶ 264. ↩
99.
Id. ¶ 271. ↩
100.
Id. ¶¶ 273–274. ↩
101.
Rome Statute, supra note 1, art. 86.

(states parties are obligated to cooperate with the Court in investigation and prosecution). ↩
102.
Carter, supra note 40, at 469–470; see also William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 54 (2008), available online.

(arguing for proactive complementarity where the ICC would directly assist and “encourage national governments to prosecute international crimes themselves.”) ↩
103.
Akhavan, supra note 57, at 532.

(“success should be measured in terms of dialogue with, and empowerment of, national jurisdictions, wherever this may be possible.”) ↩
104.
Carter, supra note 40, at 462. ↩
105.
Burke-White, supra note 102, at 54. ↩
106.
Id. ↩
107.
Carter, supra note 40, at 464. ↩
108.
William W. Burke-White, Maximizing the ICC’s Crime Prevention Impact Through Positive Complementarity and Hard-Nosed Diplomacy, in Contemporary Issues Facing the International Criminal Court 202, 212 (Richard H. Steinberg ed., 2016), earlier version (Oct. 6, 2011) available online. ↩

muma2018
6217
July 10, 2017
12:40 pm

The Deterrent Effect of the International Criminal Court on Sexual Violence in Armed Conflict

Whether or not the International Criminal Court (ICC) successfully deters crimes under its jurisdiction should be considered when assessing the performance of the Court.

In November 2015, the International Criminal Court (ICC) reported on its progress of developing performance indicators to measure its success.1 They identified four key goals, all which center solely around internal aspects of the Court such as efficiency and effective leadership.2 Although these are important aspects of a successful court, the true success of the Court cannot be meaningfully assessed without looking at the Court’s effect on extrinsic actors. Through international criminal justice, the Court aims to hold perpetrators accountable for specific crimes within conflict while at the same time preventing those crimes from happening again.3 By doing this, the ICC hopes to help promote peace and security through a deterrent effect, and thus create stability and development in post-conflict societies.4 A heavily debated question is whether the ICC actually has the ability to deter the specific crimes it was created to address: specific violations of the laws of war and “the most serious crimes of concern to the international community as a whole,”5 Does the risk of punishment by the ICC for these heinous crimes help deter possible future offenders?6

Admittedly, measuring the effect of the ICC on extrinsic factors is a difficult and complex process due to the intricacies of the Court and their relationship with states parties, but the question of how the Court has affected injustices around the globe is ever important especially as the Court attempts to continually legitimize itself as a credible institution of justice. In order to fully assess the success of the Court, it is imperative to measure whether the ICC is contributing to achieving their goals of preventing specific crimes from occurring.7 As the world’s only site of global criminal prosecution, it is vulnerable to a wave of criticism because it essentially is an experiment in prosecuting grave human rights violations.8 Thus, if the Court has a way of measuring their impact on extrinsic actors, and it shows favorable results, it could be groundbreaking.

Here, I attempt to quantitatively show whether the ICC is a successful deterrent to armed actors utilizing sexual violence in conflict. Section I introduces armed actors utilizing sexual violence in armed conflict. Section II introduces the Sexual Violence in Armed Conflict (SVAC) dataset that I used for my study.9 Section III presents my hypotheses about the impact of the ICC on armed actors, armed actors utilizing sexual violence, and the intensity of the sexual violence occurring. Section IV presents my empirical analysis and results. I found evidence that the creation of the Court alone had less of an impact on armed actors and sexual violence in armed conflict compared to the impact being a state party had on armed actors and sexual violence in armed conflict in states parties. The results show a promising outlook that the Court helps deter crimes under its jurisdiction in states parties.

I. Sexual Violence in Armed Conflict

Sexual violence, one of the crimes against humanity under the ICC’s jurisdiction,10 is widely recognized as a problem in armed conflicts and is frequently used as a weapon of war in situations such as ethnic cleansing and genocide.11 The Rome Statute defines sexual violence as “rape, sexual slavery, forced prostitution, pregnancy, sterilization, or abortion, or any other form of sexual violence of comparable gravity”12 when committed as part of a widespread or systemic attack directed against any civil population.13 Although the extent and forms vary across conflicts, it seems to mainly impact the most vulnerable populations in conflict zones and usually increases throughout the duration of a conflict.14 Furthermore, oftentimes sexual violence continues, and even increases, in the aftermath of a conflict due to insecurity in the area.15 The actors range from individuals acting opportunistically to groups engaging in sexualized torture against those suspected to be an enemy, in private or public settings.16

Sexual violence in armed conflict was not recognized as an international crime until 1992 after Muslim women in Bosnia-Herzegovina were systematically sexually abused by Bosnian Serb forces.17 The Rwandan Genocide also brought sexual violence in conflict to the forefront of discussion because the widespread rape of Tutsi women was so extensive the International Criminal Tribunal deemed it a form of genocide.18 Today, sexual violence is used systematically in conflict for multiple reasons: to terrorize populations, change the ethnic make-up of future generations, deliberately infect women from a targeted community with HIV, and break up families, just to name a few.19 For a long time sexual violence was considered inevitable in war, but recent studies suggest otherwise.20 Some conflicts have very low to no wartime sexual violence, suggesting it’s preventable or possible to deter.21 For example, Salvadoran and Sri Lankan insurgency militants do not participate in sexual violence against civilians, and rates are shockingly low in the Israel/Palestine conflict.22

When deciding what crime to use for this study, I chose sexual violence because it is so frequent in every facet of the world and not heavily dependent on certain characteristics of conflict—it occurs in both interstate and civil wars at all levels of intensity, and the type of conflict nor the region of the conflict seem to affect the rate of sexual violence.23

II. Introducing the SVAC Dataset

The SVAC Dataset, compiled by Dara Cohen and her team, measures reports of conflict-related sexual violence committed by armed actors from 1989 to 2009.24 The data covers all armed conflicts from 1989 to 2009 as defined by the UCDP/PRIO Armed Conflict Database.25 Cohen relies on armed conflict being defined as “a contested incompatibility that concerns government and/or territory where the use of armed force between two parties, of which at least one is the government of a state, results in at least 25 battle-related deaths.”26 This definition encompasses intrastate, internationalized internal, and interstate conflicts including large-scale wars and lower intensity armed conflicts.27 Furthermore, the term “armed actors” includes state forces, rebel groups, and pro-government militias (PGMs).28 The SVAC Dataset also includes data for interim years and five years post-conflict.29 In the 20 year period there were 129 active conflicts with 625 armed actors.30

In order to acquire meaningful data on sexual violence in armed conflicts, the SVAC team created a coding method and looked at reports from the U.S. State Department, Amnesty International, and Human Rights Watch.31 The U.S. State Department reports are published annually and summarize the Human Rights record for every country except the United States.32 The other two groups both publish two types of reports: (1) annual reports by country, and (2) periodic special reports by country and/or human rights issue.33 Cohen relied on these sources because they are the most commonly used sources in quantitative human rights scholarship and provide a source for annual global coverage.34 Additionally, they are considered to be trustworthy and reliable for data on human rights violations.35 Out of the six dimensions of sexual violence the SVAC Dataset examines, I will be focusing on the prevalence dimension.36 Each of the three reports for each separate actor-conflict-year combination is coded with a number from zero to three for prevalence of sexual violence. Zero means a report was issued but there was no mention of sexual violence related to that actor-conflict-year.37 One means there were isolated incidents of sexual violence, usually with numbers of victims ranging from one to 25.38 This was coded with words such as “isolated reports” and “reports of.” Two means there were numerous incidents of sexual violence, usually with numbers of victims ranging from 25 to 999 per year.39 This was coded with words such as “widespread,” “common,” “extensive,” “frequent,” “often,” and “spree.” Three means sexual violence occurred on a massive scale and was likely systematic or innumerable. This was coded with terms such as “means of intimidation,” “instrument of control and punishment,” “terror tactic,” or “weapon.”40

It must be noted the SVAC Dataset has its limitations due to possible biases. First, the reports may focus more on certain types of victims than others which could result in systematic underreporting.41 One example of this is male victims, which account for less than 1% of the observations in the SVAC Dataset.42 This could be due to non-governmental organizations and others mainly focusing on female victims in conflict zones.43 Cohen tried to limit reporting bias by using multiple data sources. The correlations between the prevalence variables from the three reports is fairly high: 0.47− 0.5.44 This strongly indicates the sources are reporting different levels of sexual violence by armed actors, thus evening out each other’s biases.45

Second, underreporting by victims is especially common in cases of sexual violence. It can be assumed the estimated numbers of victims are very conservative because many are unwilling or unable to report the incident due to fear of stigmatization, shame, fear of retributive violence, or inability to reach authorities.46 Additionally, because they are examining data on sexual violence in armed conflict, many victims and witnesses likely do not survive the assault or the conflict to report the incident. Sexual violence against males is especially likely to be underreported due to the severe stigma associated with reporting these types of incidents.47

Third, sexual violence in armed conflict has raised more international attention in recent years causing more resources and efforts to be focused on this issue. This likely means detection and reporting has also increased in recent years.48

Fourth, biases from data coding could be present. Translating qualitative reports of human rights abuses into quantitative data is a difficult task, and some people suggest that research assistants tend to code worse violations if reports are longer regardless of the actual content.49 Cohen’s team tried to mitigate this by having detailed and frequent training for the coding team, as well as documenting all coding decisions in an effort to make the process transparent.50 Additionally, in order for an instance of sexual violence to count for an actor-conflict-year combination, it must have been specifically mentioned in conjunction with the respective party.51 For example, “rebels” would not suffice and would not have been counted. This could have somewhat skewed the dataset.

III. Working Hypotheses About the ICC’s Effect on Sexual Violence52

When starting my research I decided to focus on two main topics: (1) how successful the existence of the ICC is at deterring states, rebel groups, and PGMs from participating in armed conflict and acts of conflict-related sexual violence (and as a subset to that how it specifically impacts the actions of states), and (2) how successful the ICC is at deterring states, rebel groups, and PGMs from engaging in armed conflict and acts of conflict-related sexual violence in nations that are states parties to the Court. This is an interesting way to approach the question of the ICC as a deterrent because the results will shed light on whether the creation of the Court alone is enough to deter the crimes under the Court’s jurisdiction or if a nation must be a state party in order for the Court to deter crimes in that nation. To analyze these two main topics I developed three factors: (1) armed actors participating in conflict (AA), (2) armed actors engaging in sexual violence (AASV), and (3) the intensity of the sexual violence occurring (ISV).

To measure the effect the creation of the ICC had on armed actors worldwide, I will measure each of the three factors and see how the results change after the Rome Statute came into force in 2002. First, I think the number of armed actors (states, rebel groups, and PGMs) should slightly decrease after 2002. Although the Court is not meant to deter conflict, I suspect some armed actors will be deterred from continuing their fight once an international court of justice is monitoring actions in wartime.

Second, I think the percent of armed actors (states, rebel groups, and PGMs) utilizing sexual violence should decrease. The ICC was created to monitor specific crimes within conflict and has the ability to hold perpetrators accountable. Thus, it can be reasoned that armed actors would be less likely to use sexual violence in conflict because it is a crime against humanity under the Court’s jurisdiction. Is the threat of the Court holding a party accountable enough to deter crimes in conflict?

Third, I think the level of intensity of sexual violence by armed actors (states, rebel groups, and PGMs) will decrease after 2002. Are armed actors who aren’t deterred from using sexual violence after 2002 at least committing this crime against humanity at a less intense rate? It is reasonable to assume that armed actors who are still using sexual violence in armed conflict are doing so at lower levels than prior to the creation of the Court now that a system of justice can hold them accountable for committing heinous and widespread atrocities.

Next, I wanted to examine the above questions further to see what effect the Court had solely on armed actors that are states. For this I only examined the first two factors: (1) states as armed actors participating in conflict, and (2) states as armed actors engaging in sexual violence. First, I think the number of states as armed actors will decrease after the Rome Statute came into force in 2002. Again, even though the Court does not prohibit acting in conflict, I suspect some states will be deterred from fighting once an international court is monitoring actions in wartime. Second, I expect the number of states as armed actors utilizing sexual violence to significantly decrease after 2002. States’ actions, more than rebel groups or PGMs, are in the spotlight, so I suspect the Rome Statute coming into force deterred them from committing crimes against humanity due to fear of indictment.

Lastly, to analyze the effect the Court has on states parties, I will measure each of the three factors and analyzed how the results changed after a state ratified the Rome Statute.53 First, I think the rate of armed actors in a state party will decrease after that state ratified the Rome Statute. As mentioned above, although dissuading conflict is not an aim of the Court, it is reasonable to believe the number of armed actors in a state party will drop off for fear of indictment due to crimes committed during wartime.

Second, I suspect the percent of armed actors utilizing sexual violence in a state party will significantly decrease after a state ratifies the Rome Statute. If the ICC successfully works as a deterrent, it would be assumed that armed actors would be significantly less likely to participate in crimes under the Court’s jurisdiction, especially in states parties.

Third, I think the intensity of sexual violence by armed actors in a state party will decrease after that state ratifies the Rome Statute. It is probable that armed actors in a state party who are still using sexual violence during conflict are doing so at lower levels prior to when the state ratified the Rome Statute.

Overall, I expect rates of armed actors, armed actors utilizing sexual violence, and the intensity of sexual violence to decrease both after the Rome Statute came into force in 2002 and after states ratified the Rome Statute.

IV. Empirical Investigation of the ICC’s Impacts

A. Creation of the ICC as a Deterrent

First, I wanted to test my hypotheses on whether the creation of the ICC is a deterrent to armed actors participating in conflict and armed actors using sexual violence in conflict, and whether the creation of the ICC decreases the rate of intensity of the sexual violence occurring. For these calculations my X scale is 1989 to 2009.

The first of the three factors was an easy calculation—I calculated the number of armed actors in each given year between 1989 to 2009.54 As Figure 1 shows, the number of armed actors greatly varies from 1989 to 2009 and shows no real change since the Court came into existence in 2002. The number of armed actors actually spikes at an all time high in 2004. The graph does show a downward trend since 2006, and it would be interesting to examine the data from 2009 until now to see if the downward trend continued. However, it can still be concluded the creation of the ICC in 2002 did not deter armed actors from participating in conflict.

Figure 1 Armed actors per year.55

This disproves my hypotheses that there would be a slight decrease in the number of armed actors after the Rome Statute came into force in 2002. In hindsight, these results make sense. The ICC is not an institution that is against conflict or war itself, it just stands against certain injustices that are committed during conflict: genocide, war crimes, and crimes against humanity.56 These results do not speak against the Court’s ability to work as a deterrent for the crimes that fall under their jurisdiction.

To find the percent of armed actors participating in sexual violence I calculated how many armed actors per year had a U.S. State Department, Amnesty International, or Human Rights Watch score of at least one. Then, I divided that score by the total number of armed actors that year (as shown in Figure 1). As seen in Figure 1, the percent of armed actors involved in sexual violence has significantly decreased since 2002. Although it peaked in 2002, within two years the rate dropped to its lowest point since 1999.

Figure 2 Percent of armed actors participating in sexual violence.57

This proves my hypothesis that the rate of armed actors participating in sexual violence would decrease since the Rome Statute came into force in 2002. When coupled with the results from Figure 1, it seems the Court does work at deterring certain crimes to some extent. Although the number of armed actors did not decrease, the overall rate of armed actors engaging in a crime against humanity significantly decreased by over 7%.

Lastly, I used a point system to find the average intensity of the sexual violence occurring each year. In the SVAC Dataset each actor-conflict-year combination could be awarded a maximum total of nine points: three from each the U.S. State Department, Amnesty International, and Human Rights Watch reports. I calculated how many points every armed actor received, added them together, and then divided it by the maximum number of points that could have been received that year (AASV multiplied by 9).58 As seen in Figure 3, the intensity of sexual violence occurring per year greatly varies and shows a slight decreasing trend since the Rome Statute came into force in 2002. However, I am cautious to attribute this downward trend to the Court because the statistics vary so greatly across the dataset.

Figure 3 Intensity of sexual violence per year.59

This somewhat disproves my hypothesis that the intensity of sexual violence by armed actors would decrease after the Rome Statute came into force. There does seem to be a slight decrease, yet the second highest rate in the dataset is in 2003. As mentioned above, the rates of intensity are so varied that attributing a decrease to the Court would be unsupported. It would be interesting to examine data from 2009 to the present to see if the downward trend continued, or if the intensity levels vary in a similar way as in the past.

B. Creation of the ICC as a Deterrent on States that are Armed Actors

Second, after testing my hypotheses on whether the creation of the ICC is a deterrent to state, rebel, and PGM armed actors, I wanted to narrow down the dataset to see if the creation of the ICC had a more noticeable effect on just state armed actors.60 I calculated how many of the armed actors in a certain year were state actors and divided it by the total number of armed actors in that same year. Then I did the same for state actors that are participating in sexual violence. For these calculations, my X scale is 1989 to 2009. Figure 4 shows the percent of armed actors that are states started to decrease after the Rome Statute came into force in 2002, but the percent of states participating in sexual violence actually increased.

Figure 4 Percent of AA and AASV that are States.61

This supports my hypothesis. Although one of the ICC’s aims is not to deter conflict, the decrease in states as armed actors indicates the creation of the ICC had some deterrent effect on states acting in armed conflict. However, this decrease in percent of states as armed actors means an increase in rebel groups and PGMs. A more thorough comparison of states, rebels, and PGMs as armed actors would need to be conducted in order to shed light on the suggestion that the Court deterred states from being armed actors more so than rebel groups or PGMs.

Figure 4 also indicates the percent of armed actors participating in sexual violence that are states actually increased once the Rome Statute came into force. This disproves my hypothesis. The data widely varies, and since the creation of the Court levels of states as armed actors utilizing sexual violence has stayed relatively on par or lower than the years before the Court. An increasing percent of states as armed actors utilizing sexual violence means a decreasing percent of rebels and PGMs are utilizing sexual violence. It can be suggested that the Court had little to no impact on the number of states participating in sexual, but deterred rebels and PGMs from participating in sexual violence. Again, a more thorough comparison of states, rebels, and PGMs as armed actors participating in sexual violence would need to be conducted in order to better support this finding.

C. Deterrent Effects of the ICC on Armed Actors in States Parties

Third, I tested my hypotheses on whether the ICC deters armed actors participating in conflict and using sexual violence in states parties, and whether the ICC decreases the rate of intensity of sexual violence in states parties. For these calculations, my X scale is negative five to five, with zero being the year a nation ratified the Rome Statute.62 Although conflicts occurred in 41 states parties, this data is comprised of conflicts in 32 states.63 Nine states parties are excluded from this dataset due to ratification after 2009 or no conflicts occurring in that nation within the negative five to five year period. Additionally, there is data from year −10 (if a nation just ratified the Rome Statute in 2009) to year 10 (if a nation ratified the Rome Statute in 1999). However, due to a majority of states ratifying the Rome Statute in 2001 and 2002, I limited the dataset to a maximum of negative five years prior to ratification to five years after ratification in order to yield the most accurate results.

The number of armed actors operating in states parties per year was calculated differently than the number of armed actors operating overall due to there being a different number of states parties each year on the modified X scale (compared to a relatively static number of nations in the world from 1989 to 2009).64 Rather than using the raw number of armed actors for this data, I calculated the average rate of armed actors operating per each state party that year. Figure 5 shows a significant decrease in the rate of armed actors operating in states parties after the third year post-ratification. It also shows that rates immediately prior to ratifying the Rome Statute were at a steadily high rate.

Figure 5 Rate of armed actors in ICC States Parties.65

This proves my hypothesis there would be a decrease of armed actors operating in states parties. The three-year delay can likely be attributed to it taking time for armed actors to stop participating in conflict after the ratification of the Rome Statute and for armed actors in the state party to take the commitment to the Court seriously. After four years of a rather steady rate of armed actors, a decline seems to be a promising sign that ratifying the Rome Statute helps deter armed actors from participating in conflict in that state.

Next, I calculated the percent of armed actors engaging in sexual violence in states parties. To find this, I calculated how many armed actors in a state party per each X value had a U.S. State Department, Amnesty International, or Human Rights Watch score of at least one. Then, I divided that score by the total number of armed actors in a state party per that X value. Figure 6 shows a significant decrease in the number of armed actors participating in sexual violence in a state party after that state ratified the Rome Statute.

Figure 6 Armed actors participating in sexual violence in States Parties.66

This proves my hypothesis that the rate of armed actors in states parties participating in sexual violence would decrease after the state became a party to the Rome Statute. This was my most exciting result, as it suggests that being a party to the Court significantly decreases the rate of sexual violence in armed conflict, thus confirming the Court successfully functions as a deterrent to a crime against humanity. At the year of ratification, the rate of sexual violence drops by almost 5%, and hits an eight year low by year three. Although the rate rises slightly in years four or five, the overall downward trend seems promising. More recent data would need to be examined to confirm these findings and to analyze an overall trend.

To calculate the intensity of sexual violence occurring in states parties I, once again, used the point system. For each of the 32 states parties being examined I calculated the intensity of sexual violence for each X value negative five to five. Then I added those values together and divided them by the number of states parties that had armed actors using sexual violence in each given X value to get the average intensity.67 Figure 7 shows a significant decrease the year the state ratifies the Rome Statute, and after that a continually decreasing trend.

Figure 7 Intensity of sexual violence in States Parties.68

This confirms my hypothesis that the intensity of sexual violence by armed actors in states parties would decrease after a state ratifies the Rome Statute. Although there is a slight increase in the first and second year after ratification, like the rate of sexual violence among armed actors in states parties, intensity sees an eight year low at year three. This data further suggests that being a state party to the Court does help deter not only sexual violence in armed conflicts, but the level of intensity of the sexual violence that is occurring.

V. Conclusion

The ICC is the most determined effort to date to bring justice to victims of the most heinous human rights violations. It is imperative to the success of the Court that its effects on extrinsic actors be studied so the ICC knows its places of weakness and where it needs to improve in order to be a thriving and respected institution of justice.

My study was an effort to quantitatively measure the deterrent effect the Court has on one of the crimes against humanity in its jurisdiction: sexual violence. The results suggest the Court helped decrease rates overall of armed actors participating in sexual violence after the Rome Statute came into force, and helped decrease rates in a state party of armed actors participating in sexual violence, and the intensity of sexual violence, after a state ratified the Rome Statue. The rate of reduction of armed actors participating in sexual violence in states parties was greater than the reduction overall, strongly indicating that states are more likely to reap the deterrent effects of the Court if they are a state party. In total, the results showed promise that the ICC is effectively working to deter, to some extent, crimes within its jurisdiction.

Table 1: Expectations

Creation of the ICC as an overall deterrent
1. Number of Armed Actors
  - The number of armed actors (states, rebel groups, and PGMs) should slightly decrease overall after the Rome Statute came into force in 2002
2. Percent of Armed Actors Utilizing Sexual Violence
  - The percent of armed actors (states, rebel groups, and PGMs) utilizing sexual violence should decrease after the Rome Statute came into force in 2002
3. Intensity of Sexual Violence by Armed Actors
  - The intensity of sexual violence by armed actors (states, rebel groups, and PGMs) should decrease after the Rome Statute came into force in 2002
Creation of the ICC as a deterrent for states hypotheses
1. Number of States as Armed Actors
  - The number of states as armed actors will decrease after the Rome Statute came into force in 2002
2. Percent of States as Armed Actors Utilizing Sexual Violence
  - The percent of states as armed actors utilizing sexual violence will significantly decrease after the Rome Statute came into force in 2002
The ICC as a deterrent in states parties
1. Rate of Armed Actors in ICC States Parties
  - The rate of armed actors in an ICC state party will slightly decrease after the state ratified the Rome Statute
2. Percent of Armed Actors in ICC States Parties Utilizing Sexual Violence
  - The percent of armed actors in an ICC state party utilizing sexual violence will significantly decrease after the respective state ratified the Rome Statute
3. Intensity of Sexual Violence by Armed Actors in ICC States Parties
  - The intensity of sexual violence by armed actors in ICC states parties will decrease after the respective state ratified the Rome Statute

Table 2: ICC States Parties Included in the Data

Afghanistan
Australia
Burundi
Cambodia
CAR
Chad
Colombia
Comoros
Congo
Croatia
DRC
Georgia
Djibouti
Ecuador
Venezuela
Uganda
Tajikistan
Sierra Leone
Senegal
Romania
Peru
Paraguay
Nigeria
Mexico
Mali
Macedonia
Liberia
Lesotho
Guinea
Serbia
Trinidad and Tobago
United Kingdom

Table 3. ICC States Parties Per Year (X=0)
−5	−4	−3	−2	−1	0	1	2	3	4	5
30	30	30	30	30	31	32	31	30	29	28

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
International Criminal Court, Report of the Court on the Development of Performance Indicators for the International Criminal Court (Nov. 12, 2015), available online, archived. ↩
2.
Id. ↩
3.
About, ICC, available online (last visited Dec. 15, 2016). ↩
4.
Hyeran Jo & Beth A. Simmons, Can the International Criminal Court Deter Atrocity? (Dec. 18, 2014), available online. ↩
5.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 5(1)(a-c), available online. ↩
6.
Jo & Simmons, supra note 4, at 6. ↩
7.
About, supra note 3. ↩
8.
Jo & Simmons, supra note 4, at 4. ↩
9.
Dara Kay Cohen & Ragnhild Nordås, Sexual Violence in Armed Conflict Dataset, available online (last visited Dec. 14, 2016) [hereinafter SVAC Dataset]. ↩
10.
Rome Statute, supra note 5. ↩
11.
Dara Kay Cohen & Ragnhild Nordås, Sexual Violence in Armed Conflict: Introducing the SVAC Dataset, 1989–2009, 51 J. Peace Research 418 (2014) [hereinafter Introducing SVAC Dataset], available online. ↩
12.
Rome Statute, supra note 5. ↩
13.
Introducing the SVAC Dataset, supra note 11.

(further expands this definition to include sexual mutilation and sexual torture). ↩
14.
Elisabeth Jean Wood, Sexual Violence During War: Variation and Accountability, in Collective Violence and International Criminal Justice 295, 297 (Alette Smeulers ed., 2010), available online. ↩
15.
Background Information on Sexual Violence used as a Tool of War, Outreach Programme on the Rwanda Genocide and the United Nations, UN, available online (last visited Dec. 14, 2016) [hereinafter Tool of War]. ↩
16.
Wood, supra note 14, at 295. ↩
17.
Tool of War, supra note 15. ↩
18.
Wood, supra note 14, at 295. ↩
19.
Tool of War, supra note 15. ↩
20.
Wood, supra note 14, at 296. ↩
21.
Id. ↩
22.
Id. ↩
23.
Wood, supra note 14, at 301. ↩
24.
Introducing the SVAC Dataset, supra note 11, at 419. ↩
25.
Lotta Harbom, Erik Melander & Peter Wallensteen, Dyadic Dimensions of Armed Conflict, 1946–2007. 45(5): 697–710 (Sep. 1, 2008), SAGE paywall. ↩
26.
Nils Petter Gleditsch, Peter Wallensteen, Mikael Eriksson, Margareta Sollenberg & Håvard Strand, Armed Conflict 1946–2001: A New Dataset, 39 J. Peace Research 615 (2002), SAGE paywall. ↩
27.
Frequently Asked Questions, Sexual Violence in Armed Conflict Dataset, available online (last visited Dec. 14, 2016). ↩
28.
Introducing the SVAC Dataset, supra note 11, at 419. ↩
29.
Id. ↩
30.
Id. ↩
31.
Id. at 421. ↩
32.
Id. ↩
33.
Id. ↩
34.
Id. ↩
35.
Id. ↩
36.
Id. at 419. ↩
37.
Dara Kay Cohen & Ragnhild Nordås, Sexual Violence in Armed Conflict Dataset: Codebook and User Instruction Guide (Oct. 25, 2013), available online. ↩
38.
Id. ↩
39.
Id. ↩
40.
Id. ↩
41.
Introducing the SVAC Dataset, supra note 11, at 421. ↩
42.
SVAC Dataset, supra note 9. ↩
43.
Introducing the SVAC Dataset, supra note 11, at 421. ↩
44.
Id. at 422. ↩
45.
Id. ↩
46.
Id. at 421. ↩
47.
Id. at 422. ↩
48.
Id. ↩
49.
Introducing the SVAC Dataset, supra note 11, at 421. ↩
50.
Id. ↩
51.
Id. at 422. ↩
52.
See Table 1 for summary of hypotheses. ↩
53.
Ratification of the Rome Statute is indicated by X=0. ↩
54.
see Wood, supra note 14.

(The data on interim years and five post-conflict years was included because sexual violence often continues, and sometimes increases, after a conflict ends). ↩
55.
Results calculated using data from the SVAC Dataset, supra note 9. ↩
56.
Rome Statute, supra note 5. ↩
57.
Results calculated using data from the SVAC Dataset, supra note 9. ↩
58.
For example, in 1989 there were 17 AASV. 12 AASV were given a 1, 6 were given a 2, and 0 were given a 3, so the calculation was:
( (12 × 1) + (6 × 2) + (0 × 3) ) ÷ (17 × 9) giving an average intensity level of 16%. ↩
59.
Results calculated using data from the SVAC Dataset, supra note 9. ↩
60.
See SVAC Dataset, supra note 9.

(State actors are labeled category 1 in the SVAC Dataset. This does not include state actors helping the main state or state actors helping rebel groups). ↩
61.
Results calculated using data from the SVAC Dataset, supra note 9. ↩
62.
States Parties—Chronological List, ICC, available online (last visited Dec. 15, 2016).

(Data taken from chronological list of ratifications). ↩
63.
See Table 2 for the list of states parties that comprised the dataset. ↩
64.
See Table 3 for a list of how many states were considered for each year on the X scale. ↩
65.
Results calculated using data from the SVAC Dataset, supra note 9. ↩
66.
Id. ↩
67.
For example, X value −5 had 10 countries with armed actors using sexual violence. Their ISV scores added up to 214%. 214% ÷ 10 = average intensity of 21.4%. ↩
68.
Results calculated using data from the SVAC Dataset, supra note 9. ↩

tpqowl
6218
July 10, 2017
12:47 pm

Key Performance Indicators Should Be Used in Conjunction with Tools That Measure the States Parties’ Perception of the Court in Order to Create a More Complete Evaluation of the Court’s Performance

Because the Court’s current list of key performance indicators overlooks the need to account for the States Parties perceptions of the Court (which is integral for evaluating the Court’s overall performance), the Court should create either a proxy measure of the States Parties’ satisfaction with the Court’s performance or implement a multi-method assessment of its performance by surveying the Assembly of States Parties about its satisfaction with the Court’s performance in key areas.

Introduction

In a 2015 report, the International Criminal Court (ICC) stated that it would be implementing key performance indicators (KPIs) in various areas in order to track the Court’s progress in a more strategic manner.1 The Court identified four key goals as critical for assessing the performance of the ICC:2

that the Court’s proceedings are expeditious, fair, and transparent at every stage;
the ICC’s leadership and management are effective,
the ICC ensures adequate security for its work and protection from those at risk from involvement with the Court; and
that victims have access to the Court.

The impetus for the development of the KPIs was in response to a request from the Assembly of States Parties to “… intensify its efforts to develop qualitative and quantitative indicators that would allow the Court to demonstrate better its achievements and needs, as well as allowing the Assembly of States Parties to assess the Court’s performance in a more strategic manner.”3 Although the currently proposed metrics would be useful as a tool to measure the operational efficiency of the Court, the States Parties would greatly benefit from including some form of measurement of the States Parties’ perception of the Court’s performance, because the degree to which a court can establish confidence in a judicial system is a crucial aspect of that court’s overall performance.4

The Court could monitor the States Parties’ perceptions by either creating additional proxy metrics that measure satisfaction and dissatisfaction with the Court’s performance or through a multi-method approach that surveys the States Parties through a performance evaluation (this comment suggests that an anonymous binary questionnaire would be a practical performance evaluation tool) in addition to the Court’s proposed KPIs. By understanding the collective opinions of the Court, the Court would have a better opportunity to strategically assess where it can improve operations as well as seeing which performance areas are receiving positive feedback from the States Parties. A measurement of the perception of the Court’s performance would allow the Court to have a more complete view of its performance in key areas, especially those in which quantitative measures may not give the most accurate account of the Court’s performance (e.g. fairness, effectiveness of management and leadership, or the transparency of the Court).

Additionally, considering the current infighting between the ICC and some States Parties, which have withdrawn and threatened withdrawal, it would be wise for the Court to keep a record of the States Parties’ attitudes towards the Court in order to strategically assess correlations between the Court’s activities and the general attitudinal perceptions of the ICC. Since both actors depend on each other for the success of the Rome Statute System, understanding how the Court is perceived by its primary stakeholder is critical to the Court.

The Importance of Perception

Comparative studies of courts internationally have shown that key performance indicators are useful in tracking a court’s performance.5 However, metrics developed to measure court performance often rely strictly on easily quantifiable indicators, which primarily focus on the efficiency of the court’s operation and neglect to account for less quantifiable variables to performance assessment (such as the perception of the judicial system in question). The ICC’s 2015 report, too, focuses almost exclusively on quantifiable indicators that measure operational efficiency to evaluate the Court’s progress. However, as noted by Dr. Edgardo Buscaglia and Maria Dakolias, Lead Counsel in the World Bank’s Legal Vice Presidency, in their study of performance indicators throughout different national court systems, measuring efficiency is a practical device for tracking court performance because it provides a quantifiable means of measuring performance.6 “However, justice has many other dimensions, and judicial reforms often strive for less quantifiable changes…It is important to keep this distinction in mind, because factors that affect efficiency do not always improve the overall quality of justice, and in some cases can even undermine it.”7 It is important, then, for the Court to recognize that an assessment of its performance as a judicial organization hinges on more than just qualitative outputs in its designated key performance areas. The Court must also keep track of how it is externally perceived, by those who use it, in order to develop a more complete evaluation of its performance.8

The Nebulous Key Performance Areas

Several of the key indicators proposed by the Court in its 2015 report may open themselves up to criticism, as well as skepticism, about their ability to be quantifiably measured. For instance, the Court has suggested that KPIs will be used to measure the fairness of the Court’s proceedings. Two metrics the Court has suggested as variables for measuring fairness would be: 1) the percentage of findings by Chambers confirming fair trial violations pursuant to the motions of the parties, and 2) the number of successfully argued appeals on grounds of fair trial violations.9 Further quantifiable measures could come in the form of the percentage of judicial findings confirming complaints by the parties to the Court, in regards to service delivery,10 or how many sanctions the Office of the Prosecutor has received for misconduct in its trials pursuant to Article 71 of the Rome Statute.11

However, a few possible issues arise from measuring the Court’s fairness in this manner. First, the proposed metrics only relate to procedural fairness once prosecutorial investigations have already begun. Much of the criticism the Court faces today in regards to fairness goes beyond whether the Court has followed the rules of litigation, but rather point to perceived unfairness in the Court before cases are even investigated. The Court has been accused of racial prejudice by States Parties in its selection of cases due to the fact that every defendant who has faced prosecution in the ICC has been of African descent.12 This assessment of the Court’s performance was used as the reason for several of the States Parties to withdraw, or threaten withdrawal, from the Court.13 Should, then, the ethnicity of the defendants be considered a key performance indicator of the Court’s fairness? Moreover, would such a metric actually be a quantifiable indication of whether the Court has been fair considering that many argue that the Court has justifiable grounds for its focus on the prosecution of African leaders?14

Furthermore, there are even less quantifiable aspects of fairness in regards to the Court’s performance when viewed from the differing cultural perspectives of States Parties. Though how a court is perceived is “essential to judicial reform efforts…it may be more difficult to compare on an international basis given that there are cultural and institutional differences.”15 The leaders of the Northern Ugandan tribes, for example, disapproved of the Court’s indictment of Joseph Kony for his massacres of thousands, because the cultural tradition of their people requires that all disputes end in reconciliation between the guilty party and those he has wronged.16 In effect, for some States Parties, entering a trial with intention to bestow punishment upon the defendant if he is found guilty could be viewed as unfair. These perceived differences in the concept of fairness could lead some States Parties to develop a negative perception of the Court resulting in a lack of trust and, thereby, decreasing support for the ICC.

Another key performance area that the Court has deemed to be critical to its success is the effectiveness of the Court’s leadership and management. While the Court has suggested two metrics as a starting-point for measurement (gender and regional balance of the staff and the annual rate of approved budget implementation by organ),17 these metrics fail to account for the complexities of what makes the Court’s leadership effective. The Court’s leadership affects the overall performance of the Court not only by its ability to generate productivity and efficiency within the court, but also by their choices outside of the walls of the ICC. Any misbehavior, or accusations of misbehavior, by an organization’s leader, even if it occurs in a situation wholly unrelated to the activities of the Court, can, in turn, diminish the Court’s reputation and the trust the States Parties have for the ICC, which should be reflected in an assessment of the overall effectiveness of the Court’s leadership. Furthermore, it is possible that a leader of an organization may be incredibly effective although objective measures of their performance, in regards to quantifiable outputs may indicate otherwise. For instance, if a new chief prosecutor entered the ICC following a predecessor who had an unsuccessful time in office, he may be inclined to bring on new staff members with whom he has previously worked and who are respected for the quality of their work. Assuming that the new prosecutor is familiar with the quality of these individuals’ work because they practiced together, they would likely be from the same region. So although the net quality of the Court’s work product could rise, this would reflect as ineffective performance by the Court’s leadership, since the regional diversity of the Court’s staff has decreased. Meanwhile, the overall perception of the Court’s leadership amongst the States Parties could be rising, thereby resulting in the Court’s performance indicators being an inaccurate portrayal of the Court’s actual performance.

In consideration of these nebulous interpretations of certain KPIs, having some indicator of the States Parties’ perceptions of the Court may give a more complete evaluation of the Court’s performance. The Court could accomplish this by either creating proxy measures to track the level of satisfaction the States Parties feel about the Court’s performance or by establishing a performance evaluation that directly monitors the States Parties’ assessment of the Court’s performance.

Proxy measures of the Court’s performance are closer in line with the current metrics the Court has suggested to evaluate its performance. The Court could create substitute variables that represent the States Parties opinions as to the Court’s performance. For example, the Court could track the number of withdrawals, and threats of withdrawal, which could then be used as indicators of the States Parties dissatisfaction with the Court. The benefits of proxy variables are that they allow for the Court to have easily quantifiable metrics. However, this comment will discuss the possible drawbacks of relying purely on quantitative data points while measuring general perceptions of the Court’s performance.

A second suggested method would be for the Court to apply a multi-method approach where, along with the proposed KPIs, the Court could collect performance evaluations from the States Parties. Performance evaluations could be given in several different ways, however, this comment will focus on the benefits of using an anonymous binary questionnaire that directly asks the States Parties how they would rate the Court’s performance in each proposed key performance area. There are several benefits to using the binary questionnaire method including: low cost of implementation, simplicity of use, the ability to give each respondent an equally valued voice in their opinion of the Court, and many other ancillary benefits to the Court. The possible drawback to this method is that some States Parties may, for a number of reasons, provide dishonest feedback, thereby leaving the Court with inaccurate information about how it is perceived by the States Parties.

Proxy Measures of Satisfaction

Proxy measures could be established that would serve as indicators of States Parties’ satisfaction or dissatisfaction with the Court’s performance. One possible proxy for satisfaction could come from monitoring how many States Parties have threatened withdrawal during a given period. So far, several States Parties that have withdrawn, or threatened withdrawal, have cited unfair treatment by the Court as well as conflicting interests between the Rome Statute System and the State Party’s domestic laws.18 Since the desire to withdraw from the ICC is an indication of dissatisfaction with some aspect of the Court and its performance, withdrawals and threats of withdrawal could act as an indicator of negative perceptions of the Court by the States Parties. Moreover, the Court could compare the withdrawal rates with the Court’s proposed KPIs and determine if there is any correlation to the withdrawals and underperformance by the Court in a key performance area. If causation of dissatisfaction can be linked to the Court’s underperformance, the Court will have a better opportunity to understand what areas it should focus on improving and develop strategies to fix insufficiencies that negatively impact perceptions of the Court.

Another proxy for satisfaction of States Parties is the repeat customer metric. In the private sector, a business can measure customer satisfaction by tracking the number of repeat customers it has had over a given period.19 This quantifies the degree of satisfaction by capturing the number of people who do business with the organization more than once on the assumption that if a consumer is dissatisfied with the organization’s performance, they would not use the service.20 The Court could emulate this method of measurement by tracking the number of referrals given by a State Party after a previous referral the State Party has made has come to completion either through trial or dismissal. If a State Party continues to use the Court’s services after it has seen the outcome of a prior referral, the Court could view this as positive feedback about its performance from the State Party.

A third possible proxy for satisfaction with the Court’s performance could be a measurement of positive and negative reaction to the activities of the Court and its organs through public communications made by States Parties. For instance, if a particular action by the Office of the Prosecutor spurs debate within a country’s parliament, and the debate results in a consensus that the State Party strictly opposes the activity, the Court can view this as a negative evaluation of its performance. Moreover, a group discussion between States Parties, such as those held by the African Union, could be seen as both positive and negative evaluations of the Court, with each State Party that supports withdrawal being a negative review and each State Party that opposes withdrawal being a positive review. The Court could also monitor speeches, interviews, and other communications made by States Parties and use positive and negative statements as proxies for the States Parties’ level of satisfaction.

There are, however, several downsides to relying on proxy measures of satisfaction. Proxy measures inherently force the Court to rely on measurement by inference, which inevitably avails itself to misinterpretation of the collected data.

Using withdrawal as a proxy measure of satisfaction with the Court’s performance, for instance, only gives voice to the States Parties that are dissatisfied with the Court. As of December 2016, there are one hundred and twenty-four States Parties. To date, three states have withdrawn and several other African countries, most notably Uganda and Kenya, have threatened withdrawal.21 Although withdrawals and threats of withdrawals are never insignificant, the vast majority of the States Parties have not vocalized their dissatisfaction with the Court’s performance. It would also be incorrect to interpret their silence as approval of the Court’s performance, since they may be dissatisfied with the Court but not voice their disapproval. Therefore, the withdrawal proxy would give disproportionate weight to the performance evaluation of the Court to only the most dissatisfied States Parties.

A similar critique could be made about the use of publicized opinions as proxies of the Court’s performance. Again, the performance of the Court would be evaluated by only the most vocal members of the Assembly of States Parties. Moreover, it would be incredibly costly (in terms of resources and man power) for the Court to monitor all publicized references to the Court. Considering the plethora of communication methods and mediums where a State Party could vocalize its opinion (e.g. social media, televised news reports, news publications, blogs, and podcasts), the Court would likely need dedicated staff specifically to locate and translate these communications; such costs could be seen as outweighing the benefit of collecting the information.

There is also an issue in determining how much value should be given to each publicized opinion of the Court. For instance, if a State Party restates the same complaint against the Court through multiple different mediums, should the Court weigh each complaint as having the same value in its metrics? Moreover, this could create perverse incentives for disgruntled States Parties to create false complaints in order to artificially lower the generally perceived satisfaction level with the Court.

Lastly, although repeated use of the Court could be an indication that a State Party is satisfied with the Court’s performance, there are two major drawbacks to this proxy. First, because the Court handles such a small number of cases, the length of time before any meaningful measurement can be made would be quite long. This means that the Court would not gain any immediate insights into the perception of its performance by using the repeat customer method. Second, repeated use of a service is traditionally applicable as a proxy measure of satisfaction where there are competing organizations to where a user can turn.22 The ICC, however, is a court of last resort.23 Because cases are referred to the ICC only when a national judicial system will not investigate a case, a referring State Party may be using the Court’s services in spite of its dissatisfaction with the Court’s performance, because it has no alternative. Satisfaction with the Court’s performance, therefore, may not necessarily be correlated with repeated usage of the Court’s services.

The Binary Questionnaire

There are other alternatives to the proxy measure method that the Court could use in order to gain an understanding of how the States Parties feel about the Court’s performance. Performance evaluations have been the standard in many organizations for stakeholders to evaluate their level of satisfaction with the activities of the organizations in both private and public institutions. In the United States, several states use questionnaires for judicial performance evaluations.24 Questionnaires provide a quick and cost effective method of collecting data; given the size and hectic schedules of the representatives of the States Parties, a questionnaire survey would be an efficient mechanism for gaining a collective and individual insight into the States Parties opinions about the performance and direction of the Court.

Moreover, using an anonymous binary response questionnaire to gauge whether a State Party is satisfied with the Court’s performance regarding key areas would provide immediate feedback to the Court regarding how its performance is viewed. An example of how these binary questionnaires would work in practice would be as follows: each State Party would be asked whether they found the Court’s proceedings to be fair (a key performance indicator of the Court). The State Party would then be allowed to choose either a yes or no response. The State Party would then be asked about their opinion on whether they believe the Court’s proceedings have been transparent (another key performance indicator of the Court), and again, the State Party would be allowed to answer in a yes or no response. The questionnaire would continue in this manner until the Court’s performance in each of the key performance areas deemed critical to the Court has been assessed by the State Party.

The binary performance measurement model has several advantages. First, because of its simplicity, it would not require a large investment, either in the form of capital or resources for the Court to develop and implement.

Moreover, a recent comparison of binary and, the more traditional, Likert-scale version of performance evaluations surveys (where participants are asked to rank the performance of an organization by their level of approval through either a numerical scale, e.g. 1 through 5; or level of satisfaction, e.g. strongly disagree to strongly agree) showed that binary models did not decrease the validity of the survey.25 The binary questionnaire method also eliminates some of the causes for distortion in the respondents answers by eliminating possible respondent biases such as central tendency bias26 (where respondents choose the median value, e.g. neither agree nor disagree, when presented with a scale ranging from strongly disagree to strongly agree, in order to avoid showing extremist views), because the respondents would only be given a yes or no response to choose from. Furthermore, the anonymity of the responses would allow States Parties to give more candid feedback, thereby lessening the chances of social desirability bias27 (where respondents choose to portray themselves in a manner that they believe will reflect them in either a more or less favorable manner to the examiner, and in society, rather than giving a truthful response). Questionnaires also give each State Party an equal voice, since each respondent’s opinion would hold the same relative value as all other respondent thus solving the issue of disproportionate attention being given to only the most vocal States Parties.

The States Parties should also be given the option to provide written feedback to explain their responses to the questionnaire. Doing this would provide two benefits: the Court would be able to better understand why States Parties may have a positive perception of the Court’s performance in certain areas and why they may have negative feelings about the Court’s performance in others. For example, assume a hypothetical situation where a significant number of State Parties may believe that the leadership and management of the Court are ineffective because some of the leaders chosen by the Court were found to have conducted themselves inappropriately while intoxicated during a vacation. Because, in this example, the actions by the Court’s leadership were taken outside of the organization, and do not directly relate to the Court’s operational efficiency, the Court may not initially have thought to, or have been able to, measure the performance of management outside of the Court through a KPI. But such behavior would nonetheless be a valid reflection of whether the Court’s leadership is effective, since impropriety, even outside of the organization, by the Court’s figureheads could negatively impact the legitimacy of the court and in turn hinder the Court’s performance. Moreover, written feedback from the States Parties would give the Court the ability to quickly troubleshoot inefficiencies in its organization and solve the problem (e.g. by either reprimanding the Court’s leaders or dismissing them for their behavior outside of the Court). The Court could also track changes of the States Parties attitudes and confidence in the Court over time by comparing and contrasting current findings with their previous research.28 Giving the Court an opportunity to measure the impact of new strategies or policy changes by the Court on the State’s Parties perceptions of the Court’s performance.

An additional benefit of giving the States Parties an opportunity to provide feedback in their performance evaluations of the Court is that States Parties who may otherwise not have vocalized any opinion with regards to the Court’s performance may take the opportunity to provide valuable feedback. The court can use the feedback it has gathered to evaluate the adequacy of its current KPIs, since a significant discrepancy between the States Parties and the Court regarding how the Court has performed in a key area would allow the Court to assess the efficacy of the existing KPI. Moreover, if there is overwhelming negative feedback in regards to a certain key performance area, the Court could consider developing a KPI that correlates specifically to that particular negative feedback in its internal evaluation. For instance, if there is widespread complaint that the Court has been unfairly targeting the leaders of a particular geographic region in its prosecutions, the Court could create a metric which evaluates whether the percentage of cases that have gone into investigation, by geography, in relation to all geographic locations where the Court has been referred (by the States Parties, the UN Security Council, or through the Office of the Prosecutor). The Court could then evaluate whether there has been a disproportionate amount of activity within a specific geographic area, which could be an indicator of unfairness in the Court.

The binary questionnaire, however, is not completely without pitfalls. First, a small but notable issue is that, in order to get a correct representation of how the Assembly of States Parties feels, as a collective, about the Court’s performance, each State Party must respond to the questionnaire. The court would, therefore, need to create some incentive to make sure that all States Parties participate in the performance evaluation.

A second, larger issue, is that arguments may arise as to the ability of the Court to keep the survey truly anonymous, which in turn could lead States Parties to be hesitant in providing candid feedback to the Court.

In light of recent leaks of classified government documents,29 private e-mails of political leaders being released,30 and other threats to anonymity and privacy, there have been growing concerns internationally about the ability to keep any collection of data secure. Some experts in information security have gone on the record to express that anything connected to the internet can be hacked.31 It is not without merit, then, to say that the previously mentioned value provided to the Court by States Parties offering anonymous feedback through binary questionnaires may be curtailed by fears that a State Party’s opinions could be traced back to the responding State Party, thereby disincentivizing honest feedback and giving reason for States Parties to behave strategically in evaluating the Court’s performance rather than candidly. It is possible, for instance, that out of fear that their opinions of the Court’s performance may become public, a State Party who actually believes that the ICC has done an insufficient job in offering adequate security for those at risk from involvement with the Court,32 may indicate otherwise in its performance evaluation of the Court in order to appease allies within the Assembly of States Parties.

There are, of course, measures that can be taken to create deterrence for both the States Parties or the Court from trying to unveil the anonymity of the performance evaluations. First, the Court could implement data encryption into the questionnaires in order to raise the cost for would be hackers who attempt to gain access into the performance evaluation. Although data encryption technology is not an impregnable defense against hacking, when looking at the vigorous attempts by many countries to block encryption of data and their requests for backdoor access into encrypted data services,33 this should give reason to believe that data encryption does pose some deterrent effect to countries who wish to easily access protected information. Therefore, so long as the cost of breaking the Court’s encryptions are sufficiently high, it could be a reasonable deterrent against unveiling the anonymity of the questionnaires.

The Court could also try using offline methods in order to collect the performance evaluations rather than having performance evaluations done online. Of course, just because information is not digital does not mean that it is secure. Certainly, physical copies of documents are just as vulnerable to theft as digital copies. However, the fact that an actor would have to physically engage in theft, rather than being able to anonymously steal the information through the internet, may be a sufficient deterrent as well.

Additionally, the Court could create criminal sanctions, which the Court itself would also be susceptible to (since the Court should be unaware of the source of the performance evaluation in order to preserve anonymity for the States Parties), for any actor who has either engaged or attempted to engage in determining how States Parties evaluated the performance of the Court. For States Parties, the cost-benefit of trying to gain information about how other States Parties evaluated the Court, in relation to opening themselves up to criminal proceedings, would likely favor not partaking in such behavior. For the Court, being caught behaving in a criminal manner would likely lead to a complete loss of credibility and legitimacy in the eyes of the international community (since its purpose is to punish criminal conduct) and such an action could possibly be a death knell for the Court itself, which should act a sufficient deterrent.

Implementing encryption services or using offline data collection methods, however, would raise the costs of the performance evaluations since encryption services would need to either be developed or purchased, and trying to collect physical performance evaluations from one hundred and twenty-four world leaders would take a tremendous amount of man power and time, both of which are at a premium for the ICC. Moreover, criminal sanctions would not be a sufficient deterrent for non-States Parties who are outside of the Court’s jurisdiction. These non-States Parties, including signatories, may have independent motivation to unveil the anonymity of the Court’s performance evaluations or be working alongside a State Party.

However, the possibility of the States Parties being motivated to behave strategically, rather than candidly, in their evaluations is likely not fatal to the idea of using a performance evaluation. Although the complex nature of realpolitik and the rising level of distrust and unhappiness with the ICC among several States Parties could lead one to believe that some actor(s) could use a State Party’s opinions of the Court’s performance against a State Party or the Court, an unscrupulous actor could just as easily hack into the e-mail accounts of other States Parties and use them for the same unethical purpose. If the Court is dissuaded from attempting new strategies that may benefit the ICC because of fears that it may be used against them, this would drastically reduce the amount of things the Court could do to improve its performance.

Even if the States Parties’ responses were marred by some form of social desirability bias, because they fear that their evaluations may be unveiled to the public, by and large, States Parties would be maintaining the same opinion of the Court that they currently publicly hold. Meanwhile, the feedback given to the Court by the States Parties would still be valuable to the Court, because, so long as the Court considers and responds to the assessment of the States Parties for where they would like to see improved performance, the Court is doing its part to work towards the success of the Rome Statute System and the States Parties would have less grounds to criticize the performance of the Court.

Finally, considering the efforts taken by the Assembly of States Parties to create the ICC, the vast majority of States Parties should be sufficiently motivated to behave in a manner that will help the Court succeed, and the States Parties should be trusted to act in good faith in their evaluation of the Court. Given that the Court is a manifestation of the States Parties’ collective desire to enforce international criminal justice and human rights, it is ultimately in the hands of the Assembly of the States Parties to nurture the continued growth and prosperity of the ICC. As previously discussed, attempts to hinder the progress of the Court can be made regardless of whether the Court’s performance evaluations are used against the Court’s interests, but, as the primary stakeholders in the ICC, disingenuous critiques of the Court ultimately hurt the States Parties the most. In the end, the Court, is to some degree, always at the mercy of the willingness of the States Parties to earnestly work towards the Court’s success (since the Court only has jurisdiction where the States Parties allow it). Therefore, trusting the Assembly of States Parties to evaluate the Court’s performance in an honest manner would most likely result in a net benefit to the Court, which outweighs not implementing it due to feelings of trepidation that anonymity may not be guaranteed.

Conclusion

The efforts by the ICC and the Assembly of States Parties to track the Court’s performance through qualitative and quantitative methods will benefit the Court greatly. It provides the Court with an opportunity to collect data about the Court’s operational efficiency, which in the future could be of great value to the Court in assessing its performance in relation to past performances in key performance areas. However, there are aspects to a judicial institution’s performance that are not strictly quantifiable. This is the nature of an organization whose primary objective is based on an ideology of subjective concepts, such as justice and fairness. The suggested metrics would, therefore, be greatly enhanced by including some form of measurement that tracks the States Parties perceptions of the Court. Measuring States Parties’ perceptions would provide the Court with an ability to see where the Court’s assessment of its own performance varies from that of the States Parties. The Court can then make efforts to appropriately align the States Parties views with that of the Court when needed.

This is not a recommendation for the Court to forgo its principle of being an autonomous organization, operating without political influence, but rather a note that the Court is still a partner to the Assembly of the States Parties. Like in any partnership, success depends upon periodic discussions of how satisfied each partner is. Forgetting to account for this crucial aspect of the Court’s partnership with the Assembly of States Parties would be a significant lapse.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
International Criminal Court, Report of the Court on the Development of Performance Indicators for the International Criminal Court, 2 (Nov. 12, 2015), [hereinafter First Report], available online, archived. ↩
2.
Id. at 1. ↩
3.
Id. ↩
4.
Maria Dakolias, Court Performance Around the World: A Comparative Perspective, 1 Yale Hum. Rts. & Dev. L.J. 87, 90–93 (1999), available online.

(using public confidence in a court system as a key factor for evaluating the performance of the court). ↩
5.
See generally Edgardo Buscaglia & Maria Dakolias, Comparative International Study of Court Performance Indicators: a Descriptive and Analytical Account, Research Paper, Legal Department, The World Bank (Aug. 1999), available online, archived.

(contending that qualitative surveys of judicial systems through performance indicators can help courts resolve cases in a fair and timely manner). ↩
6.
Id. at 2. ↩
7.
Id. ↩
8.
Edgardo Buscaglia & Maria Dakolias, Judicial Reform in Latin American Courts: The Experience in Argentina and Ecuador, Technical Paper, The World Bank (1996), available online.

(noting that, generally, surveys and polls are needed in order to assess a population’s overall confidence in the judicial system). ↩
9.
First Report, supra note 1, at 5. ↩
10.
Id. ↩
11.
See Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 71, available online. ↩
12.
See Chief Charles Achaleke Taku, International Politics and Policy Considerations for the Inappropriate Targeting of Africa by the ICC OTP, in Contemporary Issues Facing the International Criminal Court 338, 339 (Richard H. Steinberg ed., 2016), earlier version (Mar. 17, 2013) available online.

(contending that the ICC’s exclusive focus on Africa is an indicator that the Court has become a neo-colonial weapon to silence opposition). ↩
13.
See, e.g., Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online. ↩
14.
See, e.g., Margaret M. deGuzman, Is the ICC Targeting Africa Inappropriately? A Moral, Legal, and Sociological Assessment, in Contemporary Issues Facing the International Criminal Court 333, 334–337 (Richard H. Steinberg ed., 2016), earlier version (Mar. 17, 2013) available online.

(addressing the fact that, as of 2016, the ICC has prosecuted six cases in the African continent with four being referred by the states in question, two by the UN security council, and only one case being opened by the Office of the Prosecutor). ↩
15.
Dakolias, supra note 4, at 92. ↩
16.
Benjy Steinberg, The Prosecutor and the Paramount Chief, Vimeo (Mar. 26, 2015), available online. ↩
17.
First Report, supra note 1, at 6. ↩
18.
See, e.g., Chan & Simons, supra note 13. ↩
19.
See Clinton W. Brownley, Multi-Objective Decision Analysis: Managing Trade-Offs and Uncertainty (2013). ↩
20.
Id. ↩
21.
See Somini Sengupta, As 3 African Nations Vow to Exit, International Court Faces Its Own Trial, N.Y. Times, Oct. 26, 2016, available online. ↩
22.
See Sadia Samar Ali & Rameshwar Dubey, Redefining Retailer’s Satisfaction Index: A Case of FMCG Market in India, 133 Procedia 280, 283 (2014), available online.

(stating that repeat business is a viable method of measuring satisfaction of consumers so long as the consumer have a choice to go somewhere else). ↩
23.
International Criminal Court, Encyclo. Britannica, available online (last visited Dec. 13, 2016). ↩
24.
See, e.g., Judicial Performance Evaluation, NCSC (2004), available online. ↩
25.
Mario Grassi et al., Performance Comparison of Likert and Binary Formats of SF-36 Version 1.6 Across ECRHS II Adults Populations, 10 Value in Health 478 (2007) available online.

(noting that a comparison of a binary and a Likert-scale version of a standardized health surveys led to the conclusion that replacing multi-category answer options with binary options did not decrease the validity or the component structure of the test, but the change did significantly reduce the time required to complete the questions, thus making it a better suited methodology for surveys administered in a clinical setting). ↩
26.
Central Tendency Bias, Oxford Reference, available online (last visited Dec. 11, 2016). ↩
27.
See Derek L. Phillips & Kevin J. Clancy, Some Effects of “Social Desirability” in Survey Studies, 77 Am. J. Sociology 921, 922 (Mar. 1972), University of Chicago paywall. ↩
28.
American Bar Association, Perceptions of the U.S. Justice System 11 (1999), available online.

(following a survey of the American public’s perception of the U.S. judicial system, the American Bar Association specified several attitudinal areas that correlated strongly with confidence in the Court’s system, and should therefore be maintained, with other areas in which respondents showed a more negative attitude, where the judicial system was advised to find ways to improve its performance). ↩
29.
See, e.g., Kenneth Roth & Salil Shetty, Pardon Edward Snowden, N.Y. Times, Sep. 15, 2016, available online.

(discussing the leaks of Edward Snowden regarding high-tech surveillance by the U.S. and the resulting discussions at the United Nations regarding the protection of digital privacy). ↩
30.
See, e.g., Sam Frizell, What Leaked Emails Reveal About Hillary Clinton’s Campaign, Time Magazine, Oct. 7, 2016, available online.

(discussing the impacts of hacker group Wikileaks’ release of the private e-mails of Hillary Clinton’s campaign chairman, John Podesta, and the subsequent accusations by the White House that the Russian government had been involved with the hacking of the e-mails). ↩
31.
TED-Ed, All your devices can be hacked—Avi Rubin, YouTube (Jun. 12, 2013), available online; See also Bruce Schneier, Could Your Plane be Hacked?, CNN, Apr. 16, 2015, available online

(stating that all computer systems are vulnerable because the engineering expertise to design and build perfectly secure computers and networks do not currently exist). ↩
32.
First Report supra note 1, at 2.

(stating that protection of those at risk from their involvement with the court is one of the four key goals that are critical for assessing the performance of the ICC). ↩
33.
See e.g., Andrea Peterson, The Debate Over Government ‘Backdoors’ into Encryption isn’t Just Happening in the U.S., Wash. Post, Jan. 11, 2016, available online. ↩

sharontavax
6219
July 10, 2017
3:58 pm

Institutional Legitimacy as a Performance Indicator for the ICC

The performance of the ICC can best be measured by the degree of institutional legitimacy the Court has gained since its inception. While measuring the institutional legitimacy of the ICC is a tall order, it is a task worth considering because an institution’s legitimacy is integral to its relevance and continuance.

Introduction

On October 12, 2016 Brundi became the first country to announce its intention to withdraw from the International Criminal Court (the “ICC” or the “Court”).1 Following Brundi’s decision, South Africa also announced its plan to leave the ICC.2 On October 15, 2016 Gambia became the third country to declare its plan to withdraw from the ICC.3 The decision of these countries to leave the Court has created a fear that other African nations will soon follow their footsteps.4 If more state parties decide to leave the ICC, the institution’s legitimacy will be severely damaged. In the midst of these countries’ decisions, perhaps now is the best time to analyze how the Court’s performance has contributed to the institution’s legitimacy. Such understanding allows the Court to analyze the legitimacy challenges it faces and to find a remedy to improve its performance, thereby increasing its legitimacy.

The question by posed by the ICC tasks the author with proposing Court-wide performance indicators to measure the Court’ progress with respect to four key goals. The four goals identified by the questions are (1) expeditiousness and fairness of the Court’s proceedings, (2) effectiveness of the ICC’s leadership and management, (3) implementation of adequate security measures, and (4) adequate access to the Court for victims. The question identifies these four goals as “critical for assessing the performance of the ICC as a whole.”

Measuring the Court’s progress with respect to the aforementioned goals exposes the Court’s performance with respect to functions exclusively within its control. However, measuring the ICC’s progress with respect to only these goals provides an incomplete picture of the Court’s overall progress. The ICC’s performance is not only related to factors within its control but also factors extrinsic to it. While the Court’s efforts to increase the access of victims to it, or to ensure transparency and expeditiousness of its proceedings are important in the institution’s success, these factors are simply not enough to maintain the Court’s relevance in an emerging regime of international criminal law.

This comment proposes that the best performance indicator to measure the Court’s overall progress is the degree of the legitimacy it has gained since its inception.5 The Court’s reliance on measuring and improving its performance only in connection to the functions that it has complete control over, comes at the expense of overlooking factors that significantly contribute to the Court’s relevance and continuance. Legitimacy is integral to the ICC’s survival and relevance in the international community. First, to achieve its goal of preventing future mass atrocities, the ICC must rely on norm building and voluntary compliance, which can only be achieved if the ICC is perceived as a legitimate institution. Second, to obtain compliance with its decisions, the Court solely relies on the actions of its states parties. As a result, the Court must be perceived as a legitimate authority among the states parties in order to give effect to its orders. Additionally, empirical studies have found that public’s perception of an institution’s legitimacy are directly linked to the institution’s performance. In other words, an institution is perceived as legitimate to the extent that it performs its duties effectively and fairly.

It is important to note that the purpose of this comment is to propose legitimacy as a performance indicator the Court should consider. In other words, application of the proposed measure to the ICC is outside the scope of this comment. Also, this comment does not discuss what is the adequate degree of legitimacy for the Court to maintain its existence and relevance within the international community.

Legitimacy is Essential for the ICC to Achieve its Goal of Preventing Future Crimes

The Rome Statute, the Court’s governing document, identifies preventing the most serious crimes of concern to the international community as one of the goals of the ICC.6 Deterrence and retribution are unquestionably important goals of an international criminal court.7 While in the domestic context, criminal sanctions may deter an individual perpetrator from committing a crime; in the international context criminal sanctions are inadequate to prevent mass atrocities.8

The underlying rationale for the theory of deterrence by the threat of punishment is its assumption that criminals are rational actors, an assumption that does not apply to perpetrators of mass atrocities. In the international criminal context, there are good reasons to believe that perpetrators of mass atrocities are unlikely to consider the legal consequences of their actions before committing crimes.9 Mass violence occurs in “unique societal and historical circumstances, led by psychologically unstable individuals.”10As scholars have correctly recognized, the ICC’s goal of crime prevention “should not be confused with the ideas of specific and general deterrence.”11 Therefore, the deterrence model is not a viable method for the Court to accomplish its goal of crime prevention.

The Court will accomplish true crime prevention by creating a normative environment in which committing serious crimes or mass atrocities are not tolerated.12 Achieving this goal is possible, only if the Court is perceived as a legitimate institution among its constituency. Those justice mechanisms that are perceived as legitimate “will be more effective in reconstructing social norms concerning mass violence.”13 In other words, obtaining an adequate degree of legitimacy, will enable the ICC to re-construct social norms against mass violence and therefore change the behavior and the belief system of the perpetrator.14 Consequently, achieving legitimacy is of paramount importance to an international criminal court because it enables it to achieve compliance without the threat of punishment.15 An international criminal tribunal is effective only to the extent it can compel compliance with its orders.16

The need for the ICC to obtain an adequate degree of legitimacy is exacerbated, given the fact that the Court lacks an independent enforcement mechanism. The lack of an international police force to enforce the Court’s orders or decisions undermines its efficacy to prevent future crimes, even if perpetrators of mass atrocities are assumed to consider the risk of sanctions and arrests in their calculations for committing the crime in the first place. Therefore, the ICC cannot rest compliance with its decisions on the notion that committing mass atrocities is deterred by the risk of being caught and punished.

Obtaining an adequate degree of legitimacy, on the other hand, will give the Court the necessary authority to impact the decision calculus of perpetrators.17 If the ICC is perceived as a legitimate institution, its constituencies respect and defer to its rulings even when they disagree with them, irrespective of the threat of sanctions.18 Consequently, it is imperative for the ICC to enjoy a certain level of legitimacy to be able to reconstruct societal norms against mass atrocities and achieve its goal of crime prevention.

Legitimacy Increases Support for the Court’s Decisions

Not only legitimacy is integral to the Court’s ability to reach its goal of crime deterrence, it is important to the Court’s ability establish authority among its constituency. Democratic institutions derive their legitimacy in large part from the democratic decision-making process.19 An institution that was not created through the democratic process, therefore, suffers from an inherent legitimacy deficiency. In the domestic context, scholars have learned much about the legitimacy of national courts.20 For instance, with respect to the U.S. Supreme Court, it has been noted that the institution “ is heavily dependent upon legitimacy for its efficacy and survival.”21 Even the Justices of the U.S. Supreme Court are aware of the significance of legitimacy to their institution’s authority. In their opinion in Planned Parenthood v. Casey, Justices O’Connor, Souter, and Kennedy wrote:

The [Supreme] Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.22

Two main reasons explain why legitimacy is essential to the existence of a national court like the U.S. Supreme Court.

First, most national courts lack an independent police force to enforce their decision. For instance, the U.S. Supreme Court relies solely on the executive branch to enforce compliance with its decisions.23 Second, an un-elected national court will likely face situations in which the interest of law necessitates a decision against the preferences of the majority of its constituency. In such situations, the decisions of a court are vulnerable to backlash from the majority.24

Similar to a domestic court, which relies on other institutions to implement its decisions, the ICC relies solely on the actions of its states parties to implement its arrest warrants or other orders. If the Court lacks legitimacy among those bodies that are to implement its decision, the Court will become irrelevant.

Additionally, the ICC suffers from a similar vulnerability than that of the domestic courts in terms of reactions to its unpopular decisions. The issue with the vulnerability of the ICC’s decisions is more complex than that of a national Court, because the ICC’s rulings impact a wider range of actors (i.e. the victims of the mass atrocities, the ruling elite of a state party, etc.). Due to its mandate to prosecute the perpetrators of the most serious crimes of concern to the international community irrespective of their status, the ICC may confront situations in which its orders interfere with the preferences of a ruling elite or with states parties’ national laws.25 In such circumstances the vulnerability of the ICC’s decision is exacerbated.

South Africa’s justification for its withdrawal provides a good example of the vulnerability the Court suffers from with respect to its decision. South Africa ignored an arrest warrant issued by the ICC for the arrest of Sudanese President, claiming that the Court’s order was inconsistent with South Africa’s law, which granted diplomatic immunity to the sitting heads of states.26 South Africa decided to leave the Court on the basis that the Court’s arrest warrant was in conflict with South Africa’s law.27 South Africa’s decision to withdraw from the ICC on the basis of an unpopular decision of the Court is alarming and reflects the legitimacy challenges the Court has to confront. An institution that enjoys an adequate degree of legitimacy finds that its decisions, no matter how unpopular they might be, are accepted and complied with.28 Consequently, the ICC will be more effective in implementing its decisions, when it gains an adequate level of legitimacy.29 Thus, to ensure that its decisions are respected, the Court has to make it its goal to enhance its legitimacy among those under its jurisdiction.

Legitimacy Reflects the Performance of the ICC

The foregoing paragraphs discussed why legitimacy is of paramount importance to the Court’s relevance and survival. This paragraph focuses on the link between the Court’s performance and its legitimacy. In other words, this section explains why legitimacy is a plausible performance indicator for the ICC. If legitimacy is shaped by factors unrelated to the Court’s performance, using legitimacy as a performance indicator does not reveal much about the Court’s progress. Additionally, if legitimacy is entirely shaped and influenced by factors outside the Court’s control, undertaking the complex task of measuring the ICC’s legitimacy provides little, if any, information about the Court’s performance.

The Rome Statute, which created the ICC, is a treaty. Therefore, with limited exceptions, the consent of the states to the Rome Statute is a prerequisite to the Court’s exercise of jurisdiction.30 The ICC’s constituency is thus compromised of the states that assent to its jurisdiction and the nationals of the consenting states. Therefore, it is important to examine the factors influencing the legitimacy of the ICC among its states parties as well as those shaping the Court’s legitimacy among the nationals of the states parties.

A recent study conducted on six international adjudicative bodies found that states and those actors who influence the states’ policies (i.e. non-governmental organizations) are more likely to perceive a tribunal as legitimate if the tribunal provides fair processes and has unbiased decision-makers.31 Specifically, the study concluded that states or policy-influencing actors perceive an international judicial body as legitimate to the extent that:

“(I)t contains a core set of provisions guaranteeing (1) fair process; (2) impartial, competent, and independent adjudicators; (3) impartial and independent branches and panels; and (4) unbiased secretaries and registries.”32

If procedural fairness and impartiality of the decision makers influence states’ perception of a tribunal’s legitimacy, measuring the degree of the Court’s legitimacy may in fact shed some light on its performance with respect to achieving procedural fairness.

Similarly, a study done on the legitimacy of national courts found that publics’ view of the courts’ legitimacy is primarily shaped by the degree of procedural fairness achieved by them.33 Therefore the nationals of states parties (i.e. victims of atrocities, and perpetrators, etc.) are more likely to find the Court legitimate when it has accomplished procedural fairness. While the concept of procedural fairness is abstract and likely shaped by subjective factors, the fact that legitimacy is influenced by the Court’s procedures suggests that legitimacy is not unrelated to the performance of the Court.

On the other hand a study applying social psychology research to evaluate the legitimacy of international criminal courts has found that in the majority of conflicts, the perception of a court’s legitimacy among the affected population is primarily shaped by whom the court indicts.34 In particular, the study concluded that when an affected group identifies with one of the sides in a conflict and has a “dominant internal narrative that denies responsibility for the conflict” then indicting the members of that group will result in a negative perception of the tribunal.35

Analyzing the legitimacy of the ICTY among the affected population, the study found that the tribunal enjoyed much less legitimacy among the Serbs ethnic groups, because ICTY found Serbs to be the mastermind of the atrocities in Bosnia and this went against Serbs’ belief that they were the victims in the conflict rather than the mastermind behind it.36 The study concluded that in circumstances where all the affected population in the conflict has taken sides in the conflict, “the perceived legitimacy of international criminal courts is likely to be a negative sum game.”37 If the legitimacy of the ICC is entirely related to its indictment decisions, then measuring legitimacy will yield no information about the Court’s performance. This will likely not be the case for two reasons. First, the aforementioned study did not examine the legitimacy of the ICC and focused solely on temporary international tribunals, like the ICTY. Unlike ICTY, the ICC is a permanent international tribunal in charge of prosecuting war crimes within the territories of its states parties. Since the ICC effectuates justice in variety of conflict situations, views of the nationals subject to its jurisdiction is likely impacted by the Court’s actions in other jurisdictions as well as those with respect to their own territory. Second, the study’s hypothesis applies to a narrow set of circumstances. The study’s findings are cabined to those circumstances when each side of the conflict has taken sides with respect to it. Therefore, the study fails to provide an adequate framework for the legitimacy of the ICC.

Measuring Legitimacy

Although the International Criminal Court is a unique institution in its structure and with respect to its constituency and like no other national courts, adopting a research design similar to that used in measuring the legitimacy of a national court may be a good starting point. In a 2003 study, Gibson, Calderia, and Spence measured the legitimacy of the Supreme Court of the United States, using the diffuse support of the Supreme Court as an indicator of its legitimacy.38 They explained that diffuse support refers to a “reservoir of favorable attitudes or good will that helps members to accept or tolerate outputs to which they are opposed or the effects of which they see as damaging to their wants.”39 They further describe that diffuse support refers to “institutional loyalty; it is support that is not contingent upon satisfaction with the immediate outputs of the institution.”40 They distinguished diffuse support from specific support, explaining that the latter indicates “satisfaction with the immediate output of the institution.”41 Finally, they conceptualized loyalty as “opposition to making fundamental structural and functional changes in the institution.”42 They hypothesized that those with no loyalty toward the U.S. Supreme Court are willing to make major changes in the structure and functions of the Supreme Court.43 From this, they inferred that those Americans, who supported fundamental structural changes to the Supreme Court extended little legitimacy to the institution.44

They measured the institutional legitimacy of the U.S. Supreme Court by imposing six different statements to a sample of the American mass public and over-sample of African Americans and then analyzed the respondents’ degree of agreement or disagreement with these statements to measure the level of the diffuse support the Supreme Court enjoyed. For the purpose of the study they conducted 1,006 telephone interviews over the course of a month.45 Their sample was representative of English-speaking households in 48 contiguous U.S. state and Washington D.C.46 The questions they imposed to the respondents and their answers indicating institutional loyalty is summarized in Table 1.

Table 1. Survey on Institutional Legitimacy of the U.S. Supreme Court
Questions	Responses Indicating Institutional Loyalty
If the U.S. Supreme Court started making a lot of decisions that most people with, it might be better to do away with the Supreme Court altogether.	Disagree
The right of the Supreme Court to decide certain types of controversial issues should be reduced.	Disagree
The Supreme Court can usually be trusted to make decisions that are right for the country as a whole.	Agree
The decisions of the U.S. Supreme Court favor some groups more than others.	Disagree
The U.S. Supreme Court gets too mixed up in politics.	Disagree
The U.S. Supreme Court should have the right to say what the Constitution means, even when the majority of the people disagree with the Court's decision.	Agree

Caldeira and Gibson had used a similar method prior to the aforementioned study to measure the degree of the diffuse support for the European Court of Justice (“ECJ”), using a survey of mass publics.47 In undertaking the task of measuring ECJ’s legitimacy, Caldeira and Gibson correctly recognized that “[t]he lack of a direct electoral connection, the inability to share in the legitimacy of the nation-states, frequent adjudication of conflicts between national and European Union (EU) law, and the traditionally heavy reliance of legal institutions on the goodwill of ordinary citizens” created significant problems with respect to the institutional legitimacy of the ECJ.48

The researchers used the degree of diffuse support as an indicator of legitimacy in their study of the U.S. Supreme Court as well as their study of the ECJ. However, in their study evaluating the legitimacy of the ECJ, they restricted their survey to a sample of “attentive public” within EU Member Countries subject to the jurisdiction of the ECJ.49 The “attentive public” referred to those individuals who had a degree of awareness about ECJ.50 This was based on their realization that those who claimed to have no awareness of the ECJ were unable to make an informed response with respect to their loyalty to the institution. Similar to their study on the U.S. Supreme Court, they defined diffuse support as “institutional commitment—a willingness to defend the institution against structural and functional alterations that would fundamentally alter the role of the institution in society.”51

To measure the diffuse support of the European Court of Justice, they posed a series of propositions to respondents from each Member Country of the European Union and then analyzed their answers to determine the degree of institutional commitment ECJ enjoyed.

They first asked the respondents to indicate their agreement or disagreement with the following proposition: “If the European Court of Justice started making a lot of decisions that most people disagree with, it might be better to do away with the Court altogether.”52 They determined that those who agreed with this statement were expressing low levels of institutional commitment to the European Court of Justice.53

They then asked the respondents to determine their agreement or disagreement with respect to ECJ’s decision making function, by the following proposition: “The right of the European Court of Justice to decide certain types of controversial issues should be reduced.”54 With this respect they hypothesized that those who supported the decision making function of the ECJ only to the extent that it rendered favorable decisions exhibited little institutional commitment to ECJ.55 They determined that those who were willing to place restrictions on the decision-making authority of the ECJ were expressing low levels of institutional commitment.56

Additionally, they recognized that a degree of political independence is an essential aspect of a transnational court like the ECJ.57 They explained that if transnational courts are subservient to political institutions, their rule is seriously compromised.58 Therefore, they indicated that another variable reflecting the institutional commitment to ECJ was the willingness to defend its political independence.59 With this respect, they asked the respondents to react to the following statement:

The political independence of the European Court of Justice is essential. Therefore, no other European institution should be able to override Court opinions even if it thinks they are harmful to the European Community.60

They hypothesized that the respondents disagreeing with this assertion exhibited low levels of diffuse support for the institution.61

Measuring the Degree of the ICC’s Diffuse Support

The aforementioned studies measured the legitimacy of the U.S. Supreme Court and the ECJ. These studies provide a good starting point to measure the ICC’s legitimacy. However, studies that aim at measuring the institutional legitimacy of the Court must pay attention to its unique structure, functions and jurisdictional reach. For instance, measures adopting a similar approach must take into account the ICC’s diverse constituents. Studies designed to measure the Court’s legitimacy have to propose proper questions for each relevant actor with respect to the Court’s constituency. The relevant actor may include (1) political elites, (2) victims of mass atrocities, and (3) perpetrators of mass atrocities.

Additionally, the aforementioned studies adopted a quantitative approach for measurement of legitimacy. However, the application of quantitative methods to determine the performance of the ICC has its limitations. In particular, since data collection of the kind used in experimental designs is difficult to come by in an international setting there might be a “temptation to assume that one’s dataset must say something important just because one was able to collect it is very powerful.”62

Enhance its Legitimacy

This comment does not make a normative judgment with respect to the ICC’s legitimacy. However, this section discuses variety of factors the Court can consider to enhance its legitimacy in the international community. One important factor for the ICC to consider is the incorporation of local preferences in the Court’s investigations and prosecutions.63 Since its inception, the Court has chosen prosecution as the main method of accomplishing its mandate. Some scholars have attributed the ICC’s preference for prosecution over other approaches that incorporate the unique cultural context of each situation a design flaw.64

Additionally, local populations in jurisdictions that were subject to the ICC’s prosecutorial efforts have expressed discontent with various aspect of the Court’s approach to justice, including its perceived political bias and its lack of response to local preferences.65 To alleviate some of these concerns and enhance its legitimacy, the Court could incorporate local preferences regarding accountability before it begins indicting the accused.66 Incorporating local preferences in the Prosecutor’s strategy could lead to higher perceptions of legitimacy for the ICC.67

For instance, the ICC’s decision to indict Thomas Lubanga for conscripting child soldiers was widely viewed as a selective prosecution of a defendant for a crime that virtually all perpetrators in the conflict committed and many viewed as a relatively minor crime in the face of other extensive atrocities.68 The Prosecutor’s decision to indict Lubanga led to rumors that Lubanga was only arrested because he killed white people, in particular UN peacekeepers.69 The Prosecutor’s consideration of these factors before its decision to indict Lubanga might have alleviated the risk of local rejection of the ICC.

The ICC has also faced criticism for its work in Uganda.70 According to a population survey conduct in 2007, 76% of the Ugandan population thought that the pursuit of trials could hinder peace processes.71 Additionally, while nearly 60% of the Ugandans surveyed wanted trials for the perpetrators of mass atrocities, a similar number thought that traditional justice mechanism were needed to deal with the atrocities in Northern Uganda.72 Local NGO and international organization in Northern Uganda also suggested non-punitive methods of justice to address the situation there.73 While the idea of prosecution through trial was popular, over half of Ugandans surveyed thought that focus should be on reconciliation and forgiveness as opposed to punishment and approximately 80% wanted to forgive and reintegrate the perpetrators.74 The Court could have avoided the criticisms in Uganda by recognizing and accepting Ugandans’ local preferences for traditional justice mechanisms.

Additionally, the Prosecutor’s discretion to determine which cases to prosecute may be viewed as another impediment to the ICC’s legitimacy.75 Affected populations have accused the ICC as an institution with political bias.76 In particular, the ICC’s disproportionate focus on Africa, has led some to suggest the Court has been designed to impose western norms and justice on African perpetrators.77 This criticism must be viewed in light of the fact that half of the situations in Africa over which the ICC has exercised its jurisdiction, namely the situations in Central African Republic, Democratic Republic of Congo, Mali and Uganda, were the result of self-referrals by those states.78

In these cases, the Prosecutor did not exercise his Prosecutorial discretion. In two situations, Côte d’Ivoire and Kenya, the Prosecutor decided to initiate an investigation in the absence of a referral.79 Despite these justifications for the Court’s focus on African countries, the perception of the Court as an imperialistic institution designed to punish African defendants remain.80 The Court should take these criticisms seriously because they could severely damage the legitimacy of the Court. To address these criticisms, the Court might consider investigating other countries. The Court has already started preliminary examinations in non-African countries like Colombia, and Iraq.81 The ICC has also started investigation in Georgia.82 The ICC’s prosecution of non-African states may alleviate some concerns regarding the most widely cited criticisms of the Court, as being a biased institution and enhance the Court’s legitimacy.

Conclusion

This comment proposes legitimacy as a performance indicator for the ICC. The ICC’s legitimacy is essential to its continuance and survival in an emerging system of international criminal law. Quantitative studies that have measured the legitimacy of the U.S. Supreme Court and ECJ can be used as a plausible starting point for measuring the ICC’s legitimacy. However, these studies should be adjusted to take into account the Court’s unique structure, functions, and jurisdictional reach.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Jeffrey Gettleman, Raising Fears of a Flight from International Criminal Court, Burundi Heads for Exit, N.Y. Times, Oct. 12, 2016, available online. ↩
2.
Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online. ↩
3.
Gambia Withdraws from International Criminal Court, Al Jazeera, Oct. 25, 2016, available online. ↩
4.
Chan, supra note 2. ↩
5.
Prior studies have suggested legitimacy as a plausible method to measure the effectiveness of transnational justice mechanisms in prior studies. See e.g. Jaya Ramji-Nogales, Designing Bespoke Transitional Justice: A Pluralist Process Approach, 32 Mich. J. Int’l L. 1, 15 (2010), available online.

(proposing “that the effectiveness of transnational justice mechanisms be measured by perceptions of legitimacy on the part of the relevant actors”);

See also Stuart K. Ford, A Social Psychology Model of the Perceived Legitimacy of International Courts: Implications for the Success of Transitional Justice Mechanisms, 45 Vand. J. Transnat’l L. 405, 408 (2012), available online.

(noting that a large body of literature argues that “positive perceived legitimacy is an important factor not only in the success of international criminal courts, but also in the success of all transnational justice mechanisms.”) ↩
6.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Preamble, available online. ↩
7.
Ramji-Nogales, supra note 5, at 6. ↩
8.
Id. ↩
9.
Tomer Broude, The Court Should Avoid All Considerations of Deterrence, Contributing to Crime Prevention by Buttressing a Durable, Consistent, Credible, and Legitimate Normative Environment in which Serious Crimes are not Tolerated, in Contemporary Issues Facing the International Criminal Court (Richard H. Steinberg ed., 2016), earlier version (Oct. 6, 2011) available online. ↩
10.
Ramji-Nogales, supra note 5, at 7–8. ↩
11.
See Broude, supra note 9. ↩
12.
Id. ↩
13.
Ramji-Nogales, supra note 5, at 5. ↩
14.
Id. ↩
15.
Id. at 13. ↩
16.
See e.g. Immi Tallgren, The Sensibility and Sense of International Criminal Law, 13 Eur. J. Int’l L. 561, 570–71 (2002), available online. ↩
17.
Ramji-Nogales, supra note 5, at 13 (citing Ian Hurd, Legitimacy and Authority in International Politics, 53 Int’l Org. 379, 381 (1999), JSTOR paywall). ↩
18.
See e.g. Ramji-Nogales, supra note 5, at 13. ↩
19.
See Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1842–44 (2005), JSTOR paywall; See also Michael L. Wells, “Sociological Legitimacy” in Supreme Court Opinions, 64 Wash. & Lee L. Rev. 1011 (2007), available online. ↩
20.
See e.g. James L. Gibson & Michael J. Nelson, The Legitimacy of the U.S. Supreme Court: Conventional Wisdoms, and Recent Challenges Thereto, 10 Ann. Rev. L. & Soc. Sci. 201 (Nov. 2014), Annual Reviews paywall; See also Fallon, supra note 19. ↩
21.
Gibson, supra note 19, at 204. ↩
22.
Planned Parenthood of Southeastern Pennsylvania et al. v. Casey, Governor of Pennsylvania, et al., 505 U.S. 833, 865 (Jun. 29, 1992), available online. ↩
23.
Gibson, supra note 19, at 204. ↩
24.
Id. at 204–205. ↩
25.
Rome Statute, supra note 6, Preamble ↩
26.
Chan, supra note 2. ↩
27.
Id. ↩
28.
Gregory A. Calderia & James L. Gibson, The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support, 89 Am. Pol. Sci. Rev. 356, 356–7 (Jun. 1995), available online. ↩
29.
Id. ↩
30.
Pursuant to Art. 13 of the Rome Statute, the ICC may prosecute nationals of non-parties in situations referred to the ICC by the UN Security Counsel; when non-party nationals have committed crimes in a territory of a state that is a party to the Rome Statute; and when the non-party state has consented to the Court’s exercise of jurisdiction over its national. ↩
31.
Nienke Grossman, Legitimacy and International Adjudicative Bodies, 41 Geo. Wash. Int’l L. Rev. 107 (2009), available online.

(The international adjudicative bodies surveyed in the study are: the European Court of Justice (ECJ), the Inter-American Commission on Human Rights (IACHR), the International Centre for Settlement of Investment Disputes (ICSID), the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS), the Permanent Court of Arbitration (PCA), and the Dispute Settlement Body (DSB) of the World Trade Organization (WTO)). ↩
32.
Id. at 123–24. ↩
33.
Tom R. Tyler, How do the Courts Create Popular Legitimacy?: The Role of Establishing Truth, Punishing Justly, and/or Acting Through Just Procedures, 77 Alb. L. Rev. 1095, 1128 (2014), available online. ↩
34.
Ford, supra note 5, at 410–11. ↩
35.
Id. at 458. ↩
36.
Id. at 414–416. ↩
37.
Id. at 462. ↩
38.
James L. Gibson, Gregory A. Calderia & Lester Kenyatta Spence, Measuring Attitudes Toward the United States Supreme Court, 47 Am. J. Pol. Sci. 354, 356 (Apr. 2003), available online. ↩
39.
Id. ↩
40.
Id. ↩
41.
Id. ↩
42.
Id. at 358. ↩
43.
Id. ↩
44.
Id. ↩
45.
Id. at 366. ↩
46.
Id. ↩
47.
Calderia & Gibson, supra note 28. ↩
48.
Id. at 356. ↩
49.
Id. at 363. ↩
50.
Id. at 362. ↩
51.
Id. at 363. ↩
52.
Id. ↩
53.
Id. ↩
54.
Id. ↩
55.
Id. ↩
56.
Id. ↩
57.
Id. ↩
58.
Id. ↩
59.
Id. ↩
60.
Id. ↩
61.
Id. ↩
62.
Kenneth Anderson, The ICC Would Increase Its Prevention Ability If the Prosecutor’s Discretion Were More Visibly Limited, in Contemporary Issues Facing the International Criminal Court (Richard H. Steinberg ed., 2016), earlier version (Oct. 6, 2011), available online. ↩
63.
Ramji-Nogales, supra note 5. ↩
64.
See e.g. Ramji-Nogales, supra note 5. ↩
65.
See Param-Preet Singh, Elizabeth Evenson & Elise Keppler, Human Rights Watch, Courting History: The Landmark International Criminal Court’s First Five Years 127–30 (2008), available online. ↩
66.
Ramji-Nogales, supra note 5, at 47–48. ↩
67.
Id. ↩
68.
Id. at 47–49. ↩
69.
Singh et al., supra note 65. ↩
70.
Ramji-Nogales, supra note 5, at 47–48. ↩
71.
Singh et al., supra note 65. ↩
72.
Patrick Vinck, Phuong N. Pham, Suliman Baldo, & Rachel Shigekane, Human Rights Center, Living with Fear: A Population-based Survey on Attitudes about Peace, Justice, and Social Reconstruction in Eastern Democratic Republic of Congo, 15–18 (Aug. 2008), available online, archived. ↩
73.
Id. ↩
74.
Id. ↩
75.
Ramji-Nogales, supra note 5, at 44. ↩
76.
Id. ↩
77.
Gambia Latest African Country to Withdraw from International Criminal Court, Voice of America (Oct. 26, 2016), available online. ↩
78.
M. Cherif Bassiouni & Douglass Hansen, The Inevitable Practice of the Office of the Prosecutor, in Contemporary Issues Facing the International Criminal Court (Richard H. Steinberg ed., 2016), earlier version (Mar. 17, 2013) available online. ↩
79.
Id. ↩
80.
Gambia Latest African Country to Withdraw from International Criminal Court, supra note 77. ↩
81.
See Situation and Cases, ICC, available online (last visited Jul. 8, 2017). ↩
82.
Id. ↩

Rob
6220
July 11, 2017
12:09 am

I don't know what to think about court assessment. I do know that Rome was visited and replied to every visitor till they admitted where they Rome at except Italy or the city state. This was a development in then modern world because a child male from Greek asked Rome to intercept invaders before Greece was ever admitted before Rome into battle resulting in a new map of the world Rome had shores surrounding Greece. And Greece was happier with such deterences from other states that Rome was not at the time.

It is clear African nations have submitted much insight into the icbc as a trial court and Africa has not disputed this fact the i c provides as cannot provide for itself or whatever the fact is to their opinions they can provide justice.

I believe the measurement has well been established by African states whatever the court has done whether the court is effective and as African nations concede to the roman treaty court that has jurisdiction, the issue is resolved by comparison tests of African states and other states in the treaty of Rome. Also claimed is a statute of Rome which is it not.

I think African professionals have better insights into how effective as deterance the icbc is then any other nations.

BBM
6221
July 11, 2017
5:19 pm

In 2009-2010 while in The Hague I asked this question: "what is the effectiveness of the ICC" to Luis Moreno-Ocampo? The former Prosecutor said (1) deterrence and (2) complementarity.

Deterrence is an interesting western concept for democracies. I see a lot of genocide going on around me in Sudan, Syria, parts of Sri-Lanka, parts of Myanmar to name but a few. Not to even mention the mass slaughter and genocide of LGBT persons across much of the globe. At the same time I have seen the former Prime Minister/Foreign Minister of Israel, Tzipi Livni, cancel trips to London (before the law was changed in the UK) and Brussels because in those countries it is fairly easy to get arrest warrants.

On that topic of arrest warrants the current prosecutor is going to issue some reprimand towards the South African government for failure to arrest Al-Bashir. Aside from this illustrating one of the weaknesses of the ICC (lack of an enforcement mechanism), it seems to me to be a rather feckless move.

As to deterrence, I would say only to those who adhere to a functioning judicial system.

Which takes us to the second issue of complementarity. Naturally this is true where there is no functioning judiciary such as in the DRC, the CAR and so on. But when it comes to the concept of an independent functioning judiciary it becomes far more difficult. Who decides whether the functioning of a judicial body is independent or not? Is it the OTP to decide whether the Israeli investigations into Operation Cast Lead are independent? Or is it a committee of the ASP? Or is it a friendly Special Rapporteur on the Palestinian territories, such as the former professor, John Dugard of the ILC, who was bought and paid for by the PLO, not that different from Schabas. Maybe it should be Schabas who wanted to see Shimon Peres in the gallows.

Which raises another question which is not before the forum, the independence of the ICC from the UN. Technically the Court is meant to be independent from the UN, after all that is the function of the ICJ. But then who funds the ICC? Are the members of the ASP members of the UN? Is the ASP mutually exclusive from the UN decision making authority? A little bit tricky.

As professor Stahn and the other experts say this all gray and not a toggle switch. The ICC cannot be evaluated on the concepts of four "empirical" criteria. It requires a holistic analytic study with both subjective and objective factors.

aaacosta09
6231
July 15, 2017
1:02 pm

Measuring Performance: A Case Study of Positive Complementarity Catalyzed During the Preliminary Examination Stage in Colombia

An effective way to evaluate the performance of the ICC is to measure the positive complementarity catalyzed by the Court during the preliminary examination stage in Colombia.

Introduction

The International Criminal Court (“ICC” or “the Court”) was founded upon the principle of complementarity, which gives national criminal jurisdictions primacy over the most serious international crimes.1 It is only when a country is “unwilling or unable genuinely to carry out the investigation or prosecution”2 that the ICC may intervene. As a result of this complementarity principle, the Court is designed to be for last resort.3 Thus the ICC would achieve ultimate success if it never had to intervene because states were conducting their own proceedings. Indeed, Luis Moreno-Ocampo, the first Chief Prosecutor of the ICC, in his 2003 Ceremony for the Solemn Undertaking of the Chief Prosecutor, stated “As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.”4

This comment will demonstrate that one of the key strategies of the ICC is to catalyze national proceedings so as to avoid an ICC intervention, a strategy known as positive complementarity.5 After attributing a broad definition to positive complementarity, it will further argue that by qualitatively assessing the amount of complementarity created during the preliminary examination stage, the Court can effectively measure the success of its performance. The comment will apply this performance measurement to the situation in Colombia to determine whether and to what extent positive complementarity is achieved as a result of the ICC opening a preliminary examination in the country. By discussing the impact the ICC has had on the Colombian transitional justice process as a whole as well as on the structural and normative developments in proceedings related to sexual crimes specifically, the analysis will seek to show some of the ways the ICC has catalyzed positive complementarity. Acknowledging the limits and complexities of such an evaluation, this comment will then perform a counterfactual analysis. Finally, the comment will conclude with a few key findings from the performance evaluation on Colombia.

Before continuing, it should be noted that this performance measurement, while it is a beneficial and necessary assessment of the ICC’s performance, does have some limitations. The first limitation is the presence of other international and domestic actors. Organizations such as the Inter-American Court of Human Rights, NGOs, and Colombian civil society organizations have likely contributed to positive complementarity in Colombia, but the effects of these actors is beyond the scope of this comment. Another limitation of the the analysis is the fact that most of the correspondence between the Office of the Prosecutor (“OTP”) and the Government of Colombia is not public. This suggests that the OTP is in an even better position to evaluate the performance of the Court, as it has access to these communications. Lastly, some of the indices of performance utilized are derived from reports generated by the OTP. In the case of these reports, there is the potential for bias.

The ICC’s Strategy of Positive Complementarity

Since its inception, the ICC has always taken a positive approach to complementarity. In the 2003 Policy Paper of the Office of the Prosecutor the OTP emphasized that one of the key strategies of the OTP is to encourage and facilitate states to carry out their primary responsibility for investigations and proceedings.6 This strategy of positive complementarity7 has been fundamental to the ICC’s approach and has specifically been stated as a strategic goal in the Court’s prosecutorial strategies since 2006.8 There has been much written about the particular definition of positive complementarity, but for the purposes of this comment positive complementarity will be defined as “a proactive policy of cooperation aimed at promoting national proceedings.”9 Defined broadly, positive complementarity entails both cooperative action by the ICC as well as domestic efforts generated by the pressure of an overseeing Court.

The ICC considers the Preliminary Examination stage as vital to its success in fulfilling the two overarching goals of the Rome Statute: “the ending of impunity, by encouraging genuine national proceedings, and the prevention of crimes, thereby potentially obviating the need for the Court’s examination.”10 As a result, catalyzing positive complementarity is a key strategy. In the OTP’s 2013 Policy Paper on Preliminary Examinations, it states that it can play an active role in catalyzing positive complementarity specifically in the preliminary examination stage by:

[R]eport[ing] on its monitoring activities, send[ing] in-country missions, request[ing] information on proceedings, hold[ing] consultations with national authorities as well as with intergovernmental and non-governmental organisations, participat[ing] in awareness-raising activities on the ICC, exchang[ing] lessons learned and best practices to support domestic investigative and prosecutorial strategies, and assist[ing] relevant stakeholders to identify pending impunity gaps and the scope for possible remedial measures.11

In light of the Court’s strategy of positive complementarity, one effective way to evaluate the performance of the ICC is to measure the amount of positive complementarity catalyzed in a country during the preliminary examination stage.

Why Colombia?

In order to measure the amount of positive complementarity catalyzed as a result of the ICC’s preliminary examination in a particular country, it is important to focus on a country that has been under a preliminary examination for a length of time to ensure the increases in complementarity are consistent with the ICC’s presence and are not simply coincidences. Indeed, a long-term analysis of the ICC’s involvement in Colombia can show consistent and reliable indices of positive complementarity. The preliminary examination in Colombia has been ongoing for more than twelve years, and as such, it is an ideal situation to assess. Furthermore, this particular measurement of performance is more conducive in a country like Colombia that had the resources for judicial progress, but simply lacked the political will.12 Additionally, the situation in Colombia has been subject to much political and academic discourse and ICC correspondence and analysis, thus making data more readily available.

Background on Colombian Conflict

For over fifty years, Colombia has been enveloped in a brutal, internal armed conflict that has resulted in the deaths of at least 220,000 Colombians, of which over 80% are civilians. In addition, since 1985 there have been about 5.7 million victims of forced displacement, giving Colombia the world’s second highest population of internally displaced persons.13 The main actors to the conflict have been between and amongst government forces, paramilitary groups, predominantly the Autodefensas Unidas de Colombia (“AUC”), and guerrilla rebel groups, most notably the Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo (“FARC-EC”) and the Ejército de Liberación Nacional (“ELN”). Colombia deposited its instrument of ratification to the Rome Statute on August 5, 2002, while at the same time declaring under Article 124 a delay of ICC jurisdiction. Article 124 is a transitional provision in the Rome Statute that allows a country to avoid the ICC jurisdiction regarding war crimes for a seven-year period. As a result, the Court has had jurisdiction in Colombia over crimes against humanity since November 1, 2002 and over war crimes since November 1, 2009.

The OTP decided to open a preliminary examination in the country in June 2004, stating it had a reasonable basis to believe that crimes against humanity had been committed in Colombia since November 1, 2002. According to the OTP, these crimes committed in Colombia under Article 7 of the Rome Statute include inter alia murder, forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, rape and other forms of sexual violence. The OTP also had a reasonable basis to believe that war crimes under Article 8 of the Statute had been committed since November 1, 2009,14 including inter alia murder, attacks against civilians, torture and cruel treatment, outrages upon person dignity, taking of hostages, rape and other forms of sexual violence, and conscripting, enlisting, and using children to participate actively in hostilities.15 Most recently, the OTP has been investigating alleged false positives cases, in which government military forces have “deliberately killed thousands of civilians, and dressed them in guerilla outfits, to bolster success rates in the context of the internal armed conflict and to obtain monetary profits from state funds.”16 Since 2004, the OTP has been assessing whether Colombia has been genuinely investigating and prosecuting those most responsible for the most serious crimes.

Assessment of Colombia

Since opening a preliminary examination in Colombia in 2004, the OTP has been actively involved in the justice and peace process in Colombia. Specifically, the OTP has remained in close contact with the Colombian government, receiving 181 communications pursuant to Article 15 of the Rome Statute.17 The OTP has also made numerous visits to Colombia to speak with government authorities, NGOs, and members of Colombian civil society. This positive approach to complementarity has been constructive in the progress of transitional justice in Colombia. By actively engaging in cooperative efforts with the Colombian government, the ICC appears to have contributed to positive complementarity in Colombia.

At the same time, some of these increases in complementarity can be attributed to the simple fact of the OTP opening a preliminary examination in Colombia. The specter of an ICC investigation, which has been referred to by the Chief Prosecutor of the ICC (“Chief Prosecutor”) as a “sword of Damocles,”18 may account for some of the progress in judicial and legislative developments in Colombia. Whether the increase in complementarity is due to the OTP’s active cooperation in the transitional justice process or is largely a result of the pressure created to avoid an investigation, this comment suggests that the ICC has nonetheless catalyzed positive complementarity in Colombia. The following qualitative analysis attempts to assess these effects of the ICC during the preliminary examination stage in Colombia.

Positive Complementarity in the Transitional Justice Process

Ley de Justicia y Paz: Justice and Peace Law

The ICC’s preliminary examination in Colombia has most notably been influential in the formation and evolution of the justice and peace framework. The enactment of the Justice and Peace Law (“JPL”) in Colombia suggests the ICC played an important role in increasing complementarity. The JPL, also known as Ley 975, was enacted on July 22, 2005. Its goal is to facilitate the peace process and demobilization of paramilitaries as well as to provide truth, reparations, and a measure of justice to the victims of the related crimes.19 Although its legacy at achieving these goals has been criticized, the JPL did not simply provide a blanket amnesty in exchange for peace, as previous legal frameworks did. Rather, the JPL offered paramilitary group members reduced sentences in exchange for demobilizing, confessing the full extent of their crimes, and offering economic reparations to the victims.20

The decision to enact the JPL was catalyzed in part by ICC pressure. At the Review Conference of the Rome Statute, the Assembly of States Parties (“ASP”) stated that the ICC gaining jurisdiction over the crimes in Colombia was explicitly mentioned by Colombian prosecutors, legislators, and members of the Executive Branch as a key reason to implement the JPL.21 This indicates a clear intention to enact legislation that is consistent with Colombia’s obligations to the Rome Statute. Fearing an ICC investigation, Colombia knew it needed to hold accountable those most responsible for these crimes.

During the drafting of the JPL, the OTP stayed in close communication with the Government of Colombia. On one such occasion, the Prosecutor sent a letter to the Colombian Government indicating that the JPL needed to comply with standards of truth, justice, and reparations.22 Catalina Díaz, Director of the Transitional Justice Unit in the Colombian Ministry of Justice, comments that the shadow of the ICC contributed to having the drafting process debated and adopted publicly within the National Congress, instead of in closed political circles.23 This public process of drafting and implementing the JPL, Díaz argues, allowed civil society and international and intergovernmental actors such as the ICC to scrutinize and contribute to the process, leading to language of justice not amnesty.24

Even after its enactment in 2005, the JPL continued to receive harsh criticism because it seemed to “constitute a system of impunity” for the perpetrators.25 As a result, several human rights and victim-survivor groups filed lawsuits in the Colombian Constitutional Court challenging the constitutionality of the JPL.26 While the Constitutional Court upheld the overall constitutionality of the JPL, it did strike portions of it as unconstitutional and instituted revisions to make the JPL more in line with international legal standards of criminal responsibility and victims rights.27 Significantly, in its analysis, the Constitutional Court implemented standards from the Rome Statute in determining the constitutionality of the JPL.28 This explicit application of the Rome Statute in the Constitutional Court’s decision suggests that the ICC has impacted the positive progress of the JPL, a likely example of positive complementarity.

Since its implementation, the JPL has produced some notable results that are in line with the ICC’s strategy of positive complementarity. By the end of 2006, the AUC had completed the first stage of its demobilization process. Eduardo Pizarro Leongómez, Rapporteur on Commission of History of Armed Conflict and its Victims, has talked to many demobilized paramilitary leaders and believes the presence of the ICC has played a vital role in the demobilization process. He argues that the existence of the JPL had two large incentives for members of paramilitary groups to demobilize. First, the JPL offered greatly reduced sentences for demobilized members, and second, the paramilitary members’ would rather serve any prison sentence in Colombia, rather than in an unknown country after an ICC indictment and trial.29

So far, the Dirección de Fiscalía Nacional Especializada de Justicia Transicional—The Office of the Special Prosecutor of Transitional Justice—has made 47 convictions under the JPL.30 Most recently, the former general commander of the AUC, Ramón María Isaza Arango, was convicted for inter alia 91 counts of forced displacement as indirect and co-perpetrator.31 Additionally, the JPL tribunal issued its first macro-judgment in 2014 against Salvatore Mancuso, a paramilitary leader, and eleven other mid-level commanders. Mancuso and the other commanders were charged with, inter alia, 405 counts of forced displacement involving almost 7,000 victims and 175 counts of sexual crimes involving nearly 3,000 victims.32 These two judgments are just a few of examples of the many national proceedings Colombia has been conducting under the JPL, which is in line with the ICC’s principle of targeting those most responsible. From the drafting and implementation of the JPL, to its continued functioning, it is clear that the threat of an ICC intervention in Colombia has contributed to the strengthening of the judicial system and the ending of impunity.

Marco Jurídico para la Paz: Legal Framework for Peace

While the ICC played a constructive role in the drafting, implementation, and revision of the Justice and Peace Law, its influence in catalyzing positive complementarity did not end there. Specifically, the Court’s impact was felt during the implementation of the Legal Framework for Peace (“LFP”). The LFP, a constitutional amendment approved by Congress in June 2012, established a transitional strategy which included “the prioritization and selection of cases against those bearing the greatest responsibility for crimes against humanity and war crimes.”33 With the goal of providing a framework for peace negotiations between the FARC-EC and the Government of Colombia, the amendment conferred on Congress the discretion to determine criteria for prioritizing prosecutions of those most responsible for crimes against humanity, war crimes, and genocide. As a result, Congress was given the power to inter alia reduce and suspend sentences for those less responsible as well as to define which crimes would be labeled as “political,” such that their perpetrators could be eligible for future participation in politics.34

The drafting process of the LFP was influenced by the threat of a potential investigation by the ICC. Seeking to mirror the ICC’s model of criminal liability for those most responsible for crimes, the Colombian Senate referred to the OTP’s prosecutorial strategy as a justification for this standard.35 While not all members of Congress felt the prioritization standards would comply with the Rome Statute, nonetheless, the ICC’s pressure was felt in the process. Subsequent Congressional debates were replete with references to the ICC’s jurisdiction, indicating that avoiding an ICC intervention was a guiding factor in the LFP’s design.36

The LFP was seen by many human rights groups as a “disguised immunity” that promoted the continued system of impunity.37 While discussing the newly enacted LFP, the OTP, in its 2012 Interim Report on Colombia, mentioned its concern that exclusively focusing on those who bear the most responsibility for these crimes may leave an impunity gap for the mid-level and low-level perpetrators.38 The constitutionality of the LFP was subsequently challenged in the Constitutional Court of Colombia. During the Court’s examination, the Chief Prosecutor of the ICC sent two letters to the Chief Justice of the Constitutional Court threatening an ICC intervention if the LFP were to suspend sentences for those most responsible for crimes against humanity, war crimes, and genocide.39 In the letter dated July 26, 2013, the Chief Prosecutor stated:

As a result of this analysis I have come to the conclusion that a conviction that would be grossly or manifestly inadequate in light of the seriousness of the crimes and the type of participation of the accused, would invalidate the authenticity of the national judicial process, even if all previous phases had been considered genuine. Since the suspension of a prison sentence means that the defendant does not spend time in prison, I wish to advise you that this would be manifestly inadequate in the case of those who appear to be the most responsible for committing war crimes and crimes against humanity. A decision to suspend the imprisonment of these persons could suggest that the processes are carried out or with the purpose of shielding the persons in question from criminal responsibility in conformity with Articles 17(2)(a) and 20(3)(a) or alternatively that the processes are implemented in a way that, given the circumstances, are incompatible with the intention of subjecting the persons to the action of justice, in accordance with the provisions in Articles 17(2)(c) and 20(3)(b).40

In its judgment, the Constitutional Court of Colombia mentioned the two letters the Chief Prosecutor of the ICC had previously sent regarding its possible intervention. While the Constitutional Court did uphold the overall constitutionality of the LFP, the opinion implies that the ICC’s threat of intervention played a role in one notable clarification of the amendment. In its conclusion, the Constitutional Court laid out nine parameters for the implementation of the LFP into legislation. One of the parameters explicitly prohibits a total suspension of sentences for those most responsible for crimes against humanity, war crimes, and genocide.41 In addition, the amended LFP gave the exclusive power of prioritizing cases to the Fiscalía General de la Nación (Attorney General) of Colombia, instead of Congress. This shift in authority helped strengthen the judicial system by keeping the decision of crime prioritization away from the more politicized Congress.42 This clarification in the revised LFP that prohibited suspension of sentences for those most responsible for crimes against humanity and war crimes and the grant of exclusive power to the Fiscalía General de la Nación suggest that the ICC again contributed to positive complementarity in Colombia’s transitional justice process.

Final Accord for the End of the Conflict and the Construction of a Stable and Lasting Peace

On November 24, 2016, the Government of Colombia and the FARC-EC signed the Acuerdo Final para la Terminación del Conflicto y la Construcción de una Paz Estable y Duradera (“The Peace Accord”), marking a momentous step towards ending the prolonged Colombian conflict.43 The Peace Accord, which has been under negotiation for the past four years, was initially rejected by the narrowest of margins on October 2, 2016 in a national plebiscite that dashed the hopes of a long-lasting peace for Colombia. Subsequently, the Government of Colombia and the FARC-EC rejoined to modify the agreement. Finally, in November 2016, the new agreement was sent through Congress and approved. The final Accord sets out six key points of agreement between the Government of Colombia and the FARC-EC. Specifically, these are:44

the end of the conflict with the FARC-EC,
justice for the victims,
solution to the illegal drug problem,
better opportunities for rural development,
open democracy and more participation, and
implementation, verification, and endorsement.

The peace process that led to the signing of The Peace Accord, which started on August 26, 2012 in Havana, was made possible by the passage of the LFP. Although there is no available information to indicate that the Government of Colombia and the FARC-EC discussed the possibility of an ICC intervention in their negotiation process (most conversations were confidential), there is strong evidence that the specter of an ICC investigation was influential in this process. In particular, the text of The Peace Accord makes specific reference to the Rome Statute. In the preamble, The Peace Accord states both parties’ adherence to the mandates of the Rome Statute during the negotiation and drafting process.45 Later, in the section that discusses the scope and limits of the amnesty provisions, The Peace Accord states:

There shall be no amnesty or pardon or equivalent benefits for crimes against humanity, genocide, serious war crimes—that is, every violation of International Human Rights committed systematically—the taking of hostages or other serious deprivation of liberty, torture, extrajudicial killings, enforced disappearances, rape and other forms of sexual violence, child abduction, forced displacement, in addition to the recruitment of children, all in accordance with that established in the Rome Statute.46

All of this taken together, reflects the parties’ shared desire to abide by the mandates of the Rome Statute, thus preventing an intervention by the ICC.

In her statement on the conclusion of the peace negotiations in Colombia, the Chief Prosecutor of the OTP expressed her commendations towards the Government of Colombia, the FARC-EC, and the people of Colombia for this historic achievement. In particular, the Prosecutor conveyed her satisfaction that the final text of The Peace Accord expressly prohibits amnesties or pardons for crimes against humanity and war crimes under the Rome Statute.47,48 This stamp of approval bodes well for a future of peace in Colombia and is another clear example of the Court’s catalyzing of positive complementarity.

Positive Complementarity with Regard to Sexual Crimes

Sexual and Gender-Based Crimes

While it is clear that the ICC can and does play a vital role in catalyzing domestic action and progress in the overall emergence and development of the Colombian transitional justice process, there is also strong evidence that the Court catalyzes positive complementarity with regard to the prosecutions of particular crimes. Specifically, the ICC has stimulated the prioritization of investigations and proceedings against sexual and gender-based crimes (“SGBC”) in Colombia. With a particular focus on the developments in SGBC prosecutions in Colombia, this section will explore how the ICC has contributed to an increase in complementarity.

SGBC in Colombia

During the bloody Colombian conflict, there have been an indeterminate number of SGBC committed, leaving thousands of victims without recourse. The available data on the total number of SGBC during the Colombian conflict is largely varied. Acknowledging the inherent difficulties in determining the exact number of victims, such as underreporting by victims, the Centro Nacional de Memoria Histórica in its comprehensive report found there to be 1,754 victims of sexual violence from 1985 to 2012.49 On the other hand, in its 2012 Interim Report, the OTP says that at least 33,960 women in Colombia have been victims from 2001–2009. It lists some of the most prevalent SGBC, including rape, sexual mutilation, forced prostitution, sexual slavery, forced pregnancy, and forced abortion.50 While the exact number of victims is unclear, what is apparent is the widespread epidemic of sexual violence that has occurred during the Colombian conflict. Under Article 7 of the Rome Statute, crimes against humanity include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.51 Similarly, Article 8 lists as war crimes rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions.52

Reform and Development of SGBC Prosecutions

Although the ICC has been monitoring the situation in Colombia since it opened its preliminary examination in 2004, it was not until 2012 that the OTP began a proactive strategy of encouraging domestic prosecutions of SGBC in Colombia. Highlighting that as of May 2012 there had only been four individuals convicted of rape and other SGBC, the OTP stated that “the level of prosecutorial and judicial activity pertaining to the commission of rape and other forms of sexual violence appears disproportionate to the scale of the phenomenon, the devastating consequences of the crimes and the number of victims.”53 In concluding its 2012 report, the OTP listed five new areas of focus, one of them being the proceedings related to sexual crimes.54

Since setting the proceedings of sexual crimes as one of its key areas of focus, the OTP has engaged in a positive approach to complementarity with the Colombian government. In 2013, the OTP sent a delegation to Colombia to meet with Colombian authorities, international organizations, and civil society organizations. These talks and discussions were aimed at addressing the five key areas of focus from the 2012 Interim Report.55 Subsequently, in 2013, a draft bill regarding sexual violence made its way through the Colombian Congress. On June 18, 2014, Law 1719 was enacted, marking a significant step the development of SGBC proceedings. Specifically, Law 1719 recognizes that sexual violence can constitute a crime against humanity, war crimes, or genocide, and established that there is no statute of limitations for such crimes. The law also codified the crimes of enforced sterilization, forced pregnancy, and forced nudity into the Colombian Penal Code—crimes falling under the jurisdiction of the ICC.56

Following the implementation of Law 1719, the ICC began to see progress made in the fight against SGBC in Colombia. In a 2014 macro-judgment from the Bogotá JPL tribunal, paramilitary leader Salvatore Mancuso and other mid-level commanders were convicted for 175 charges of SGBC, including rape, sexual slavery, enforced prostitution, enforced sterilization, enforced abortion, and sexual violence which affected 2,906 victims.57 Similarly, in February 2016, Ramón María Isaza Arango, former commander of the AUC and a notorious drug trafficker, was convicted of twelve counts of rape, four counts of sexual violent acts, two counts of enforced prostitution or sexual slavery, and one count of forced abortion.58 The OTP also notes that the Sub-Directorate of Public Policies and Corporación SISMA Mujer finalized a protocol in 2015 for the investigation and prosecution of SGBC.59

Taken together, this back-and-forth engagement between the OTP and the Government of Colombia seems to have increased the amount of domestic investigations and proceedings of SGBC in Colombia, suggesting the ICC has contributed to positive complementarity. Amrita Kapur, Senior Associate of the Gender Justice Program at International Center for Transitional Justice, notes that these positive changes in SGBC reform are in part, the result of Colombia’s altering of practices and policies so as to avoid an ICC investigation.60 At the same time, she posits that the Rome Statute standards along with the jurisprudence of the Court and the OTP identification of focus areas help to “empower norm entrepreneurs such as advocates, prosecutors and judges to incorporate international conceptions of SGBV61 into national practice.”62 In this context, though the OTP continues to advocate for more comprehensive progress in SGBC proceedings, there is a strong inference that the presence and participation of the ICC have been a catalytic force in positive complementarity.

Counterfactual Analysis

The available data on the impact of the ICC on Colombia during the preliminary examination stage strongly suggests that the ICC has catalyzed positive complementarity. While this finding is significant, it should be noted that the ICC is just one of many actors operating within the complex political-legal realities of a country transitioning out of conflict. As such, this section will attempt to isolate the effects of the ICC on Colombia by implementing a counterfactual analysis. Stated another way, this analysis will try to determine how the situation in Colombia would have unfolded without the intervention of the ICC.

Without Colombia’s ratification of the Rome Statute in 2002, and the ICC’s subsequent opening of a preliminary examination in 2004, the situation in Colombia would have undoubtedly been different. Faced with international pressure from other countries and organizations, such as the Inter-American Court of Human Rights, it is likely that Colombia would still have made progress in peace and justice, possibly to the same extent as it has now reached. However, without the intervention of the ICC, this progress would likely have taken a lot longer, resulting in thousands of more victims and an even more protracted human rights crisis in Colombia. At every step of the process, the ICC has exerted pressure to reform and conform to international human rights standards. Although a preliminary examination that has so far lasted over twelve years may seem like a long time, it is almost certain that the presence of the ICC sped up the peace and justice process in Colombia.

More specifically, without the ratification of the Rome Statute and intervention of the ICC, the implementation of justice may have suffered at the cost of peace. For a country that has experienced more than a half-century of internal armed conflict, peace at any cost could have seemed tempting. During the drafting and implementation of the JPL and the LFP, the drafters would likely have relied heavily on amnesty provisions. As a result of the ICC’s involvement in Colombia, the OTP advised and even threatened the Government of Colombia, warning that language of amnesty in the legislation could trigger a full-scale investigation by the ICC. Fearing an ICC investigation, Colombia continued to make sure it did not grant amnesty for those most responsible for the most serious international crimes.

Lastly, without the ICC, the transitional process in Colombia would have likely suffered with regard to legitimacy and mobilization. The implementation of the Rome Statute and the opening of a preliminary examination by the ICC likely gave domestic actors in Colombia confidence and hope in internalizing and advocating for international human rights standards and laws. Because the ICC was seen as the guarantor of human rights, civil organizations and NGO’s were emboldened to mobilize during the transitional justice process. Without this legitimacy of human rights and mobilization, the transitional justice process would likely have dragged on for many more years.

Key Findings/Conclusion

Measuring the positive complementarity catalyzed by the ICC is an effective way to evaluate the Court’s overall success. Applying this measurement to the situation in Colombia, it is apparent that the ICC has contributed to positive complementarity. During the entire preliminary examination, the OTP has remained in close contact with the Government of Colombia and other domestic actors. Though the examination has continued for over twelve years, the ICC has skillfully maneuvered through the complexities of the transitional process in Colombia, intervening when necessary and encouraging the Government of Colombia to continue in its transitional justice efforts. While the ICC has been able to catalyze positive complementarity by actively engaging with Colombia, the greatest catalytic force has been derived from the mere presence of the ICC and the threat of an ICC investigation. Under the shadow of the ICC, Colombia has taken huge steps towards both justice and peace. As The Peace Accord was just approved by the Constitutional Court to be implemented on a fast-track, the world watches in anticipation that justice will be done and long-lasting peace will be achieved in Colombia. Perhaps, as a result of positive complementarity, the ICC will soon end its preliminary examination in Colombia. That would truly be a success for the Court.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
See Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 5, available online. ↩
2.
Id. art. 17. ↩
3.
See About, ICC, available online (last visited Jul. 8, 2017). ↩
4.
Office of the Prosecutor, International Criminal Court, The Principle of Complementarity In Practice (2003), available online. ↩
5.
See Office of the Prosecutor, International Criminal Court, Report on Prosecutorial Strategy (Sep. 14, 2006), available online.

(stating that positive complementarity is “that it encourages genuine national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.”) ↩
6.
See Office of the Prosecutor, International Criminal Court, Paper on Some Policy Issues Before the Office of the Prosecutor (Sep. 2003), available online. ↩
7.
See Report on Prosecutorial Strategy, supra note 5. ↩
8.
See Office of the Prosecutor, International Criminal Court, Strategic Plan 2016–2018 (Nov. 16, 2015), available online; Office of the Prosecutor, International Criminal Court, Strategic Plan June 2012–2015 (Oct. 11, 2013), available online; Office of the Prosecutor, International Criminal Court, Prosecutorial Strategy 2009–2012 (Feb. 1, 2010), available online; Report on Prosecutorial Strategy, supra note 5. ↩
9.
Prosecutorial Strategy 2009–2012, supra note 8. ↩
10.
Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2016 (Nov. 14, 2016), [hereinafter Preliminary Exam 2016], available online. ↩
11.
Office of the Prosecutor, International Criminal Court, Policy Paper on Preliminary Examinations (Nov. 2013), available online. ↩
12.
According to the Rome Statute, issues of admissibility are determined by a State’s unwillingness or inability to genuinely carry out investigations or prosecutions. See Rome Statute, supra note 1, art. 17. For states that are unable to genuinely carry out investigations or prosecutions, it is less likely that an ICC intervention will lead to positive complementarity. ↩
13.
See Centro Nacional de Memoria Histórica, ¡BASTA YA! Colombia: Memorias de Guerra y Dignidad (Aug. 2013) [hereinafter Memorias de Guerra y Dignidad], available online. ↩
14.
Because the paramilitaries were for the most part demobilized by 2006, the allegations of war crimes do not concern them. ↩
15.
See Preliminary Exam 2016, supra note 10. ↩
16.
Nelson Camilo Sánchez León, Acceptance of International Criminal Justice: Country Study on Colombia (Int’l Nuremberg Principles Acad. 2016), available online. ↩
17.
See Preliminary Exam 2016, supra note 10. ↩
18.
Fatou Bensouda, Reflections from the International Criminal Court Prosecutor, 45 Case W. Res. J. Int’l L. 505, 507 (2012), available online. ↩
19.
L. 975/05, julio 25, 2005, Diario Oficial (Colom.). ↩
20.
See Colombia: The Justice and Peace Law, The Center for Justice & Accountability, available online (last visited Jul. 8, 2017). ↩
21.
See International Criminal Court, The Importance of Justice in Securing Peace (May 30, 2010), available online. ↩
22.
See Alejandro Chehtman, The ICC and its Normative Impact on Colombia’s Legal System, DOMAC (Oct. 16, 2011), available online. ↩
23.
Éadaoin O’Brien, Par Engstrom & David James, In the Shadow of the ICC: Colombia and International Criminal Justice (May 26, 2011) [hereinafter In the Shadow], available online. ↩
24.
See id. ↩
25.
Corte Constitucional [C.C.] [Constitutional Court], mayo 18, 2006, Sentencia C-370/06 (translated into English), Gaceta de la Corte Constitucional [G.C.C.] (Colom.). ↩
26.
See Colombia: The Justice and Peace Law, supra note 20. ↩
27.
See Corte Constitucional, Constitucional Claim Decision C-370 de 2006, available online. ↩
28.
See Corte Constitucional, supra note 25. ↩
29.
See In the Shadow, supra note 23. ↩
30.
See Sentencias Ley de Justicia y Paz, Dirección de Fiscalía Nacional Especializada de Justicia Transicional, available online (last visited Jul. 10, 2017). ↩
31.
See Preliminary Exam 2016, supra note 10. ↩
32.
See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2015 (Nov. 12, 2015) [hereinafter Preliminary Exam 2015], available online. ↩
33.
Office of the Prosecutor, International Criminal Court, Situation in Colombia Interim Report (Nov. 2012) [hereinafter Colombia Interim], available online. ↩
34.
See Carlos Bernal-Pulido, Transitional Justice within the Framework of a Permanent Constitution: The Case Study of the Legal Framework for Peace in Colombia, 3 CJICL 1136, 1140 (2014), HeinOnline paywall. ↩
35.
See Grace Boffey, Assessing Complementarity: The ICC and Human Rights Policy in Colombia (unpublished Ph.D. thesis, University of Western Australia) (2015), available online. ↩
36.
See id. ↩
37.
Graciela Rodriguez-Ferrand, Colombia: Congress Approves Framework Law for Peace, Global Legal Monitor, Jun. 25, 2012, available online. ↩
38.
See Colombia Interim, supra note 33. ↩
39.
See Corte Constitucional [C.C.] [Constitutional Court], agosto 28, 2013, Sentencia C-579/13 (translated into English), Gaceta de la Corte Constitucional [G.C.C.] (Colom.). ↩
40.
Id. § 3.16.1. ↩
41.
See id. § 9.9.8. ↩
42.
See Boffey, supra note 35. ↩
43.
See Acuerdo Final para la Terminación del Conflicto y la Construcción de una Paz Estable y Duradera (Nov. 24, 2016) [hereinafter Acuerdo Final], available online. ↩
44.
See Conozca Los Puntos del Acuerdo, Acuerdo de Paz, available online (last visited Jul. 15, 2017). ↩
45.
See Acuerdo Final, supra note 43. ↩
46.
See id. ↩
47.
See Office of the Prosecutor, International Criminal Court, Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the peace negotiations between the Government of Colombia and the Revolutionary Armed Forces of Colombia—People’s Army (Sep. 1, 2016), available online. ↩
48.
The Chief Prosecutor’s statement was directed towards The Peace Accord before it was renegotiated in October and November 2016. Changes made to The Peace Accord, which was approved on November 24, 2016, tightened up some of the provisions for members of the FARC-EC. This increased focus on justice is surely in line with the OTP’s strategy of positive complementarity. See Washington Office on Latin America, Key Changes to the New Peace Accord (Nov. 15, 2016), available online. ↩
49.
See Memorias de Guerra y Dignidad, supra note 13. ↩
50.
See Colombia Interim, supra note 33. ↩
51.
See Rome Statute, supra note 1, at art. 7. ↩
52.
See id. art. 8. ↩
53.
Colombia Interim, supra note 33. ↩
54.
See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2012 (Nov. 2012), available online. ↩
55.
See Press Release, ICC, ICC Office of the Prosecutor Concludes Visit to Colombia (Apr. 19, 2013), available online. ↩
56.
See Zainab Hawa Bangura, United Nations, Columbia: Historic New Law Offers Survivors of Sexual Violence Hope for Justice and Redress (Jun. 24, 2014), available online. ↩
57.
See Preliminary Exam 2015, supra note 32. ↩
58.
See Preliminary Exam 2016, supra note 10. ↩
59.
See Preliminary Exam 2015, supra note 32. ↩
60.
See Amrita Kapur, The Value of International-National Interactions and Norm Interpretations in Catalysing National Prosecutions of Sexual Violence, 6 Oñati Socio-Legal Series 62, 62–85 (2016), available online. ↩
61.
In her article, Kapur uses SGBV to stand for sexual and gender-based violence. This comment uses SGBC, the functional equivalent of SGBV. SGBC stands for sexual and gender-based crimes. ↩
62.
Kapur, supra note 60. ↩

pgsojo
6258
July 20, 2017
9:00 am

Measuring Performance on Arrests and Visualizing a More Effective Way in Procuring Them

Performance indicators to evaluate the success or failure of the International Criminal Court (ICC) in terms of its mandate of arresting suspects.

It is clear how the world has always been in desperate need of a worldwide ruling court, where criminals of great atrocities would face justice internationally known and accepted. The ICC was founded as a court of last resort; it is the world’s first permanent international criminal court,1 striving to secure safety and justice in the world. One of the main goals of the court is not only to hold responsible those who committed certain types of crimes, but also avoid these crimes from occurring again.2

From its creation, the ICC has been faced with a paradox. On one hand, it has been given a significant mandate to arrest suspects, and on the other hand, it lacks enforcement powers.3 Unlike states, the ICC is not supported by systemic law enforcement. Certainly, the creation of the ICC was a significant turning point in the search for an international criminal judicial entity. Nonetheless, the ICC has been largely dependent on the cooperation and judicial help from the states to procure arrests based on Article 58 of the Rome Statute,4 making them completely vulnerable if states parties refuse to cooperate. This lack of an enforcement power gives the world the wrong idea of what the court should be; it creates doubts and uncertainties of whether the court has the capability or not to punish against war crimes, crimes against humanity and genocide.

This comment uses performance indicators to evaluate the success or failure of the ICC in terms of its mandate of arresting suspects. Specifically, this comment examines the number of persons indicted by the ICC who either have been arrested or have surrendered, the duration it took for the arrest to be affected, and the proportion of these arrests that are categorized as sealed indictments. Additionally, this comment compares the ICC arrests with the ICTY arrests to determine if there are any significant similarities or differences; and whether the ICC, in comparison to the ICTY, is obtaining the desired results.

People Indicted by the ICC Since 2003

This section examines the number of people who have been indicted by the ICC, the proportion of indicted suspects arrested or surrendered, the duration taken to make these arrests, and sealed indictment arrests.

Arrest by the ICC and the Duration It Took Before the Arrests were Effected

As of March 2014, the ICC had indicted 36 individuals. Out of the 36 wanted persons, the ICC had issued 27 arrest warrants. The first person to be arrested was Thomas Lubanga Dyilo from Congo who was charged for recruiting children under the age of 15 years into the Patriotic Force for the Liberation of Congo (FPLC) and using them to participate in armed conflicts.5 He was indicted on February 10, 2006 and arrested on March 16, 2006.6 It took 37 days for the ICC to bring Lubanga to its custody,7 this made a good statement about the capacity the ICC has not only in arresting but also the influence the court has on the participation of that state party.

The second suspect to be arrested was Germain Katanga, who was found guilty on charges of crimes against humanity and war crimes.8 He was indicted by the ICC on July 2, 2007. By this time, authorities in Congo had already arrested him on March 1, 2005 following an attack that killed nine UN peacekeepers.9 He was eventually handed over to the ICC on October 17, 2007,10 approximately 107 days after the arrest warrant was issued. In my opinion, this delay in being transferred to the ICC was a negative aspect in this arrest, since it suggested that the state party did not participate adequately.

Mathieu Ngudjolo Chui from Congo was the next arrest made by the ICC, accused of committing war crimes and crimes against humanity, he was indicted on July 6, 2007.11 However, it was not until February 6, 2008 that Chui was arrested by Congolese authorities and transferred to The Hague.12 In total, it took 215 days before the arrest warrant was effected.

The next warrant of arrest was issued against Jean-Pierre Bemba in May 23, 2008, he was charged with crimes against humanity and war crimes.13 A day later on May 24, 2008, Bemba was arrested by Belgian authorities in Belgium and handed over to the ICC on July 3, 2008.14 This is a clear example of how, if states parties offer their complete support on the arrest, it can be effectuated as speedy as possible.

At the same time in Congo, the Hague based court indicted Callixte Mbarushimana, also accused of war crimes and crimes against humanity, on September 28, 2010 and on October 11, 2010 he was arrested in France and later transferred to The Hague on January 25, 2011.15 The period between the time the arrest warrant was issued and the time he was arrested is 13 days, an excellent record for the ICC.

With regards to the situation in Libya, Saif al-Islam Gaddafi, charged with murder and persecution, was indicted by the ICC on June 27, 2011 and arrested on November 19, 2011.16 Therefore, it took 145 days for the arrest to be effected. Similarly, the ICC issued an arrest warrant against Abdullah Senussi on June 27, 2011.17 He was arrested on March 17, 2012 in Mauritania, but has never been extradited to The Hague because the Libyan government sought to try him in Libya.18 It took 264 days before Senussi was arrested.

The ICC also issued a warrant of arrest against Laurent Gbagbo on November 23, 2011, accusing him of murder, rape, inhumane acts and persecution.19 However, he was transferred to the International Criminal Court on December 5, 2011.20 This was 12 days after the arrest warrant was issued. However, it is worth noting that by the time Gbagbo’s arrest warrant was issued, he was already in the custody of Ivorian authorities who had arrested him on April 11, 2011 following the violence that erupted after he rejected the outcome of the 2011 presidential elections.21

The last suspect to be arrested was Charles Blé Goudé, charged for committing crimes against humanity.22 He was indicted on December 21, 2011.23 He was arrested in Ghana on January 17, 2013 and handed over to the ICC on March 23, 2013.24 It took a total of 393 days for Blé Goudé to be arrested.25 Having it taken more than a year to procure the arrests, this suggests that the ICC definitely needs another option for arrest other than only depending on states parties to comply with it.

ICC Surrender

Other than arrests, there are a few cases where persons indicted by the International Criminal Court have surrendered themselves to the Court. The ICC indicted a Ugandan, Dominic Ongwen, on July 8, 2005 because of crimes committed by the Lord’s Resistance Army.26 He surrendered to U.S. military advisors that were helping Ugandan forces on January 6, 2014 in the Central African Republic.27 The International Criminal Court took custody of him on January 17, 2015.

Similarly Bosco Ntaganda, a Congolese national, had been on the ICC’s wanted list since August 12, 2006.28 In March 2013, he fled to the United States Embassy in Rwanda where he made a request to the U.S. to facilitate his surrender to the Hague-based court.29 In line with his request, the ICC took custody of him and took him to The Hague on March 22, 2013.30 Ahmad Al Faqi Al Mahdi, a Malian, also surrendered to the ICC following an arrest warrant issued against him on September 18, 2015.31

Therefore, out of the 36 individuals that the International Criminal Court has indicted since its inception, it has issued 27 arrest warrants. Out of the 27, it has successfully made 9 arrests or 33% of the people wanted by the court. Similarly, three individuals (11%) have surrendered to the court after a warrant of arrest was issued against them. Collectively, the total number of arrests and surrenders is 12 out of the 27 individuals wanted by the court. This indicates a 44% success rate.

Sealed Indictment

A sealed indictment is not disclosed to the public,32 and as a result, the likelihood of the accused being arrested is high. The accused cannot take actions to avoid being arrested because he/she is unaware that an arrest warrant has been issued against him/her. In all the arrests and surrenders, only Laurent Gbagbo’s arrest was a sealed indictment. Due that this arrest was effected in only 12 days, contrary to 177 which is the average number of days towards effecting an arrest of an non sealed indictment; it is clear how sealed indictments are more effective. This should be taken into account for the following indictments, since it is clear how the not knowing of an arrest warrant has a more positive effect.

Evidently, the number of wanted persons who have surrendered to the ICC is dismal. Although the ICC can hope that many of the indicted suspects who are still at large can surrender to the jurisdiction of the court, it cannot rely on voluntary surrender as strategy for bringing suspects to book. Instead, the global community must come up with effective strategies to address the problem of long outstanding arrest warrants. One of the strategies that I suggest is that of formulating a way the ICC could end up with a police force and this way would not depend on other state parties to formulate them for the court. Having this force would give the ICC a complete handling of their arrests.

Focus on African Countries

It is worth noting that all these arrests have been made in Africa. The ICC has never indicted or arrested any person outside the African continent. This implies that state parties from Africa, such as Congo, have been very cooperative with the ICC in terms of effecting arrests. However, it is also worth noting that many of the state parties are reluctant to effect arrests for seating head of states. For instance, despite the existence of a warrant of arrest for President Omar Al Bashir,33 he has travelled to many countries including Kenya, Uganda, South Africa, and Chad without being arrested,34 taking out credibility and power from the court. Being this the case, I remain with the same opinion that an enforcement power would help the court not only in gaining more credibility, but also in effecting those arrest warrants in a successful manner.

Because of its focus on Africa, many African leaders through the African Union have been critical of the court arguing that it is a tool used by western powers to fight leaders in Africa and bring about regime change in Africa.35 These concerns have in turn reduced the ICC’s enforcement mechanism and legitimacy. Unless these concerns are addressed, the ability of the ICC to effect arrests will further diminish. Already there is a move by countries such as South Africa to withdraw from the Rome Statute.36 If other state parties that have threatened to withdraw, such as Burundi, Kenya, Uganda, and Namibia make good their threat and withdraw from the ICC, then the capacity of the court to effect arrests will be severely compromised.

The thought of having a police force, I believe, would make the ICC look as if it had more control of the situation. This element could also help the fact that African Countries are trying to withdraw, since it will make the court more authoritative and more trust worthy. Although everything else stated, I do believe this police force needs to be taken inconsideration very wisely since it could also make African countries assume this enforcement force would be permissive to the court. In order to introduce this force correctly, the court first has to address the focus on African Countries problem in order for this force to be accepted ad not seen as a hoax.

Comparison between ICC and the ICTY

Even without its own military or police force, ICTY registered significant success in its arrest record. From its creation in 1993, ICTY managed to indict 161 persons for serious breaches of the Geneva Conventions.37 As at July 2011, all the individuals indicted by the ICTY were in the courts custody.38 Although various arrest warrants were issued by the ICTY soon after it was created, as early as 1996, 7 of the 74 indicted suspects were already in the court’s custody, and by 2004, 62 suspects were in custody.39

When compared to the ICC, its evident proportion of arrest for the ICTY was far better than the ICC. In the first three years, the ICTY had an arrest rate of 9.5%, eight years after its creation its arrest rate reached 83.8%, and by 2011 (15 years since its creation), it had 100% success rate having arrested all the indicted suspects.40 On the other hand, the ICC has existed since 2002, and 14 years later, it has issued arrest warrants for 27 people, out of which nine suspects are still at large.41 As noted earlier, ICC’s success rate in terms of arrests is only 33%. Consequently, the proportion of arrests for ICTY is more than that of ICC, and therefore the ICTY has been more successful.

There are several lessons on effecting arrests that the ICC can learn from the ICTY. Until the 1990s, the ICTY faced serious challenges in procuring arrests and surrenders from states.42 However, in the 2000s, the ICTY managed to increase its influence by involving the European Union and the United States.43 The EU and the U.S. were supportive in terms of providing incentives to ICTY and placing sanctions on Croatia and Serbia to enhance cooperation from these countries.44

The ICC too should increase its bargaining advantage with state parties in order in having more influence in this issue. Even though the ICC lacks effective enforcement power of its own, it has the legal and political tools at its disposal that it can use toward this end. The ICC prosecutor should engage with powerful international players including the African Union, the European Union, the UN, as well as with police and judicial investigation bodies such as Interpol and Europol to achieve the court’s desired outcomes. Such cooperation could be facilitated through relations or cooperation agreements between these institutions and would increase the likelihood of implementation of the decisions of the judges at The Hague.

With the support of all major players internationally, the prosecutor can achieve compliance from uncooperative countries. The prosecutor’s office can enhance its ability to effect arrests by enhancing its institutional capacity such that it can be able to examine the political situations and undertake constructive judicial diplomacy both globally and in countries.

NATO’s Ground Force for ICTY and Implications for ICC

Unlike the ICC, the ICTY had boots on the ground, and this significantly contributed to its impressive arrest record. The ICTY had an actual military presence, which facilitated the arrest of individuals it had indicted.45 Even though the ICTY did not have a formal arrest procedure, Article 29 of the ICTY Statute required UN member countries to comply with any requests made by the Trial Chamber, including requests for arrest individuals wanted by the tribunal. It is under this statute that multinational forces under NATO’s leadership were granted arresting powers, and made frequent arrests.46 Eventually, the multinational military forces offered the much-needed supplementary military support and facilitated the arrest of suspects wanted by the ICTY. NATO’s involvement offered personnel on the ground, which was critical in effecting the arrests of individuals that the ICTY prosecutors wanted. NATO’s arrest missions, were endorsed by both the United States and the European Union, and this significantly enhanced NATO’s arrest capability.47

Given that one of the most persistent challenges facing the ICC is the lack of a reliable mechanism to procure arrests of indicted individuals, ICTY’s success indicates that the ICC should have an international police force to enforce its warrants because it cannot continue to rely on the goodwill of state parties. Among the situation countries, only Congo has demonstrated its willingness to make arrests. Other situation countries such as Sudan have numerous wanted persons that are still at large despite existing arrest warrants.

Potential Police Force in Service of the ICC

Bringing the indicted suspects into the ICC’s custody has proved to be a serious challenge for the fourteen years that the court has existed. Given that the ICC has no power to arrest and no police force to effectuate these arrests, the ICC has relied on determined action by state parties whose commitment is influenced by economic and political considerations. Arresting suspects is a substantial weak spot that has affected the ICC in a profound way.

One of the main problems the ICC faces now a day is the slowness of the Court to effectuate arrests; since the Court relies completely in state parties to bring the indicted to justice, the Court is in someway powerless in this sense to improve it. It is crucial for the Court to be seen as a successful one, a court that all countries would like for it to be involved, an “international” court universally accepted. In order for it to gain credibility with these issues, be recognized by even more states than the ones today and to become a powerful institution acknowledged worldwide, the court is in desperate need of an arresting force.

In comparison to the success rate the ICTY had with the intervention of NATO, it is clear how a police force of its own would be beneficial to the ICC. Even though NATO was not part of the ICTY, it served it as so. If the ICC would try to have a police force of its own and this was rejected, I believe a ground source such as NATO would also increase the ICC’s arresting percentage.

Differencing Police Force from Military Force

While suggesting the implementation of a police force of its own, I find it crucial to note that a very important distinction must be made between police/arresting force and military force. It is vital to make this distinction, because a military force serves only in times of war, emergency or natural disaster, while a police force is a civil force that is in service of the public. A police force is the most suitable for this type of operation since one of the goals of the ICC is peace, a military force would bring the exact opposite.

Another key aspect of differentiating these forces is the effect a military force would have in the minds of African countries, how invasive they would feel it on their territory. If these arrests are going to be enforced, it needs to be in the sharpest way possible, and that is by making it permissible from state parties. The only way of making it admissible is by respecting the region. If this operation were to take place, the state must not be involved in any way; it needs to be as discrete as possible, by not involving the military.

A police force would only be in charge of bringing the suspect into custody, while a military one would feel intrusive to African or other countries. Needless to say, even though this suggested force would be of great value to the court, it could also be bring the court a step back if it is not addressed correctly. This force needs to be established by taking every situation into account, and also by focusing on the main goal, which is the arrest.

Since now a day, the indictment success rate the ICC has is of 44%; the court needs to find a way to increase this percentage. The court must secure the arrests in any possible way, taking into account the concerns, needs and security of states parties. The ICC needs to improve in this arrest issue in order for its reputation to grow internationally and gain more states parties.

Conclusion

The ICC has made a big impact in the world of international law, given its circumstances it has done everything possible to obtain the desired arresting results. Even though its arrest records do not overcome those of the ICTY, the court is heading towards the right way in acquiring a more efficient way of arresting. With this comment you can come to realize that the ICC still needs work, but either if it is with a police force or issuing more sealed indictments, the ICC has every possible means of achieving greatness.

On the other hand I do believe that in order for the ICC to be more successful, it needs a multinational police force, which will make it possible and easier to arrest and bring to justice international criminals. Depending on states parties to comply with arrest has helped in the past, but not in the extent necessary. NATO’s involvement in the ICTY indicates that this is a viable proposal that the ICC should consider.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
About, ICC, available online (last visited Jun. 28, 2017). ↩
2.
Id. ↩
3.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Arts. 1, 59 available online. ↩
4.
Cedric Ryngaert, Some Reflections on Securing the Arrest of ICC Fugitives, ICC Forum § 2 (Feb. 13, 2014), available online. ↩
5.
International Criminal Court, Case Information Sheet: The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06 (Oct. 2016) [hereinafter Dyilo Information], available online (last visited Nov. 9, 2016). ↩
6.
The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to article 19(2)(a) of the Statute of 3 October 2006 (Dec. 14, 2006), available online. ↩
7.
Dyilo Information, supra note 5. ↩
8.
International Criminal Court, Case Information Sheet: The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07 (Mar. 27, 2017), available online (last visited Jul. 15, 2017). ↩
9.
Id. ↩
10.
Id. ↩
11.
International Criminal Court, Case Information Sheet: The Prosecutor v. Mathieu Ngudjolo Chui, Case No. ICC-01/04-02/12 (Feb. 27, 2015), available online (last visited Jul. 15, 2017). ↩
12.
Id. ↩
13.
International Criminal Court, Case Information Sheet: The Prosecutor v. Jean-Pierre Bemba Gombo, Case No. ICC-01/05-01/08 (Mar. 21, 2016), available online (last visited Jul. 15, 2017). ↩
14.
Situations Under Investigation, ICC, available online (last visited Jul. 15, 2017). ↩
15.
International Criminal Court, Case Information Sheet: The Prosecutor v. Callixte Mbarushimana, Case No. ICC-01/04-01/10 (Jun. 15, 2012), available online (last visited Jul. 15, 2017). ↩
16.
International Criminal Court, Case Information Sheet: The Prosecutor v. Saif Al-Islam Gaddafi, Case No. ICC-01/11-01/11 (Mar. 26, 2015), available online (last visited Jul. 15, 2017). ↩
17.
International Criminal Court, Case Information Sheet: The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Case No. ICC-01/11-01/11, 2 (Aug. 1, 2014), available online. ↩
18.
Situations Under Investigation, supra note 14. ↩
19.
International Criminal Court, Case Information Sheet: The Prosecutor v. Laurent Gbagbo, Case No. ICC-02/11-01/11 (Nov. 18, 2014), available online (last visited Jul. 15, 2017). ↩
20.
Id. ↩
21.
Open Society Justice Initiative, The Trial of Laurent Gbagbo and Charles Blé Goudé at the ICC, 4 (Jan. 2016), available online. ↩
22.
International Criminal Court, Case Information Sheet: The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé, Case No. ICC-02/11-01/15 (Jan. 2016), available online (last visited Jul. 15, 2017). ↩
23.
Id. ↩
24.
Id. ↩
25.
Situations Under Investigation, supra note 14. ↩
26.
International Criminal Court, Case Information Sheet: The Prosecutor v. Dominic Ongwen, Case No. ICC-02/04-01/15 (Jan. 2017), available online (last visited Jul. 15, 2017). ↩
27.
Id. ↩
28.
Id. ↩
29.
Women’s Initiatives for Gender Justice, First Ugandan Suspect, LRA Commander Dominic Ongwen, Transferred to the ICC in the Hague (Jan. 21, 2015), available online. ↩
30.
Bosco Ntaganda, A Surprising Surrender, The Economist, Mar. 19, 2013, available online. ↩
31.
Jennifer Easterday, Mali Suspect Surrendered to the ICC, Int’l Just. Monitor, Sep. 28, 2015, available online. ↩
32.
André Klip & Göran Sluiter, Annotated Leading Cases of International Criminal Tribunals 154 (2001). ↩
33.
The Prosecutor v. Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05-01/09-1, Warrant of Arrest for Omar Hassan Ahmad Al Bashir (Mar. 4, 2009), available online. ↩
34.
Somini Sengupta & Marlise Simons, Omar al-Bashir Case Shows International Criminal Court’s Limitations, N.Y. Times, Jun. 15, 2015, available online. ↩
35.
Mary Kimani, Pursuit of Justice or Western Plot? International Indictments Stir Angry Debate in Africa, Africa Renewal, 12 Oct. 3, 2009, available online. ↩
36.
Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online. ↩
37.
Jessica Lincoln, Transitional Justice, Peace and Accountability 42 (2011). ↩
38.
The Fugitives, ICTY, available online (last visited Jul. 15, 2017). ↩
39.
Achievements, ICTY, available online (last visited Jul. 15, 2017). ↩
40.
Benjamin Ward, Ratko Mladic’s Arrest and International Justice, openDemocracy (May 31, 2011), available online. ↩
41.
History, ICTY, available online (last visited Jul. 15, 2017). ↩
42.
Id. ↩
43.
Id. ↩
44.
The Conflicts, ICTY, available online (last visited Jul. 15, 2017). ↩
45.
Christopher K. Lamont, International Criminal Justice and the Politics of Compliance, 181–182 (2010). ↩
46.
Han-Ru Zhou, The Enforcement of Arrest Warrants by International Forces: From the ICTY to the ICC, 4 J. Int’l Crim. Just. 202, 207 (May 1, 2006), Oxford Academic Paywall, archived. ↩
47.
Id. 208 ↩

emrenslo
6284
July 25, 2017
9:05 am

The Performance Indicator “Expeditiousness of Proceedings” Will Cause Unintended Negative Consequences

Using “Expeditiousness of Proceedings” as a performance indicator, as currently envisioned by the ICC, has unintended negative consequences for the prosecutorial, judicial, and management aspects of the Court.

I. Introduction

The ICC released a report of the Court on the development of performance indicators for the International Criminal Court.1 In it, it has outlined four key goals as critical for assessing the performance of the ICC as a whole:2

The Court’s proceedings are expeditious, fair and transparent at every stage;
The ICC’s leadership and management are effective;
The ICC ensures adequate security for its work, including protection of those at risk from involvement with the Court; and
Victims have adequate access to the Court.

This comment will be analyzing the first stated goal: The Court’s proceedings are expeditious, fair and transparent at every stage. Within this goal, the Court is seeking to measure three key items:

the expeditiousness of proceedings;
the fairness of proceedings; and
the transparency of proceedings.

More specifically, this comment will be analyzing the first item: the expeditiousness of proceedings. By measuring and using the performance indicator of “Expeditiousness of Proceedings,” the Court will negatively harm the prosecutorial, judicial, and management branches of the Court by shifting the goal of the Court from effectiveness to efficiency. It will also hurt other stated goals within that same performance indicator, by undermining the fairness of proceedings.

II. Background

It is important to understand the Court’s purpose and goals for creating performance indicators, and in particular, the performance indicator of “Expeditiousness of Proceedings.”

A. Background for Performance Indicators in General

The Assembly of States Parties has requested the ICC to:

[I]ntensify its efforts to develop qualitative and quantitative indicators that would allow the Court to demonstrate better its achievements and needs, as well as allowing States Parties to assess the Court’s performance in a more strategic manner.3

The Court has attempted to identify mainly quantifiable indicators which stakeholders will recognize as reflecting key aspects of the Court’s performance, and which can be measured over time.4 The Court’s aim is to develop over time a comprehensive set of performance indicators as outlined above at both the Court-wide and the organ-specific levels, on the basis of which the Court would declare its targets and justify deviations from them. The Court will report on progress to the 15th session of the Assembly of States Parties.5

B. Background for “Expeditiousness of Proceedings” Performance Indicator

The duration of cases, past and present, is a particular concern of the Court’s stakeholders and is widely seen as an indicator of the Court’s overall efficiency and effectiveness.6 The likely duration of a case is affected by a number of factors such as:7

the number of accused persons,
their position(s) within a political or military hierarchy,
the number and nature of the charges,
the volume of evidence and likely number of witnesses,
the complexity of the legal and factual arguments involved,
whether the case raises significant novel legal or evidential issues,
the geographical scope of the case (localized or extensive),
the scale of the victim communities affected.

C. Long Term Goal of “Expeditiousness of Proceedings” Performance Indicator

The Court’s long-term aim is therefore to establish, based on past experience and the factors identified above, an expected duration for the stages of each new case against which actual performance can be measured and variations accounted for.8 The intention is to report progress to States in early 2017 on the basis of the first year’s comprehensive data covering in particular the time taken:9

between initial appearance and confirmation of charges hearing;
between confirmation of charges and start of hearing phase;
between the end of trial hearings and the issuance of the judgment pursuant to article 74 of the Rome Statute;
between the judgment pursuant to article 74 of the Rome Statute and, where appropriate, sentencing and reparations decisions pursuant to articles 75 and 76 of the Rome Statute;
between the closing date for appeals submissions and the appeal judgment pursuant to article 81 of the Rome Statute.

The eventual performance indicator would therefore be: (a) the degree of variance from the expected duration for each major procedural phase per case, based on an assessment of the complexity of the case and the number of defendants.10

III. Negative Consequences

The categories of goals that the Court’s Strategic Plan currently addresses are Judicial, Prosecutorial, and Managerial.11 The effects of the “Expeditiousness of Proceedings” performance indicator will be examined with respect to how it affects the Court’s own categories of goals.

A. Prosecutorial

The first major problem with this performance indicator is that it provides prosecutors incentives to reduce the quality of their work in order to meet benchmark times predicted by the Court’s methodology. The goal of the Court is that when a new case arrives, there will be very clear time estimates for each stage of that case predicted by the Court’s quantitative methodology, and the Court’s performance will be measured by whether or not these time estimates are met. The prosecutor now is under immense pressure to meet these time estimates, or else the ICC will be unable to give satisfactory reports to the Assembly of States Parties and the Court’s stakeholders. The prosecutor will have to justify any deviations from the time estimates.12 This is clearly burdensome, and provides another “incentive” to meet these time estimates. Meeting time estimates, rather than being a fair and effective prosecutor, becomes the overarching concern.

What it means to be an “effective” prosecutor goes to another one of the Court’s performance indicators, “Fairness of proceedings.” The Court desires to measure this performance indicator by analyzing: the % of findings by Chambers confirming fair trial violations pursuant to motions of the parties; and, the % of grounds of appeals successfully arguing fair trial violations in Chamber decisions or judgments.13 Fairness of proceedings, as acknowledged by the Court, is a difficult concept to measure. The defendant is in a particularly vulnerable position when accused of crimes against humanity. Every organ of the Court should be working to ensure that the defendant receives a fair and full trial. However, the implantation of the “Expeditiousness of Proceedings” performance indicator, as intended, undermines the fairness of proceedings by giving prosecutors incentives to prioritize being efficient over effective.

1. Cutting Direct Examinations Short

During a court proceeding, a prosecutor will have all of the facts of the case, police reports, medical reports, any other important documents, as well as the expected duration of that stage. When the prosecutor is conducting direct examinations of witnesses, conflicting goals will arise. For a typical prosecutor, there are two goals. One is to properly convict a defendant who is factually and legally guilty. This means legally proving all the elements of the crime, negating any possible legal defenses, and convincing a jury of the defendant’s peers of the guilt of the defendant, taking into account the possibility of jury nullification. The other goal is to ensure the fairness of proceedings. This means thoroughly analyzing whether the defendant is in fact factually guilty, turning over any exculpatory evidence, and not disregarding any of the defendant’s rights.

With the implementation of the “Expeditiousness of Proceedings” performance indicator, a third goal will arise: finishing proceedings in the time determined by the quantitative formula. In general, court proceedings often proceed as predicted and finish on time or even early. However, it is not uncommon that court proceedings deviate from expectations. For example, the witness may contradict the statements that were made in previous interviews. Or, the witness may be very nervous and only give short answers that do not fully prove the elements of the alleged crime.

In addition, legitimate concerns have been raised about the pervasiveness of witness tampering in ICC proceedings. While threats, intimidation, injury, bribery, or any other types of coercion of potential or actual witnesses can be issues in any jurisdiction, it is argued that this is and has been especially problematic for international criminal adjudication.14 Prosecutors and judges are likely unaware of any witness issues until after a witness arrives in person at The Hague to testify, or fails to show up altogether. And, even if the witness does testify, they may have been intimidated to fundamentally change their testimony from what they provided to investigators. The prosecution going through the victim/witness giving the entire altered story on the witness stand, impeaching the witness, and an extensive cross examination by the defense attorney can add hours or days to a single proceeding. And, while hopefully this would be the exception rather than the rule, the ICC deals with cases where the victims and witnesses are especially susceptible to intimidation. Witnesses are regularly “spirited away” from their family and friends and are expected to build new lives for themselves.15 The Court has to ordinarily and commonly deal with these issues in determining time estimates, and they cannot be readily predicted by a quantitative methodology on a case by case basis.

In addition, the prosecutor legally may need to elicit only a small percentage of what the victim/witness observed to legally fulfill the elements of the alleged crime. However, an effective prosecutor would choose to elicit everything that a witness observed to create a thorough court record, to give more context to the situation, and to determine the credibility of the witness. A prosecutor operating with the goal of finding a guilty defendant guilty, and upholding the fairness of proceedings, will find a benefit pertaining to both of these goals in holding a lengthy direct examination of each witness. However, a prosecutor with a third, and possibly overriding goal, of finishing the court proceeding in the time allotted by the quantitative formula will find a major benefit in cutting direct examination short. The prosecutor would do this by only eliciting what is necessary to fulfill the elements of the crime. By doing this when the prosecutor is running short on time, the prosecutor could find the defendant guilty, not elapse the allotted time, and thus not have to justify why the proceeding took too long, even when the prosecutor would have been fully justified in going over time based on the facts of the specific case.

Also, the defense attorney has the right to cross-examine the witness after direct examination. After cross examination, the prosecutor has the right to conduct a re-direct examination of the witness. An effective prosecutor, with the first two goals in mind, would attempt to clear up any seemingly damaging testimony elicited from the victim/witness by the defense attorney, by asking clarifying questions. The prosecutor may also re-elicit certain facts to clear up any confusion sustained by either the judge (for a preliminary examination) or the jury (for trial). But, a prosecutor given the third goal of finishing stages of prosecution within a previously allotted time is incentivized to do less re-direct examination, if any at all. The prosecutor may only do it in a small percentage of situations, or only when there is plenty of time left in that stage of the proceeding. In instances where there is little time remaining, a prosecutor is incentivized to not do re-direct and hope that the judge and jury can untangle the testimony for themselves.

2. Reducing Victim Testimony

The quantitative formula for “Expeditiousness of Proceedings” will provide a prosecutor a certain amount of time for trial. For the crimes that the ICC prosecutes, there may be tens, hundreds, or even thousands of victims. While it is impractical to bring them all to The Hague to testify, the ICC usually attempts to bring as many victims and witnesses to testify as is practical or possible.16 Legally, for a crime like genocide or mass rape, there may only need to be testimony from a certain percent of the hundreds or thousands of victims that exist. However, an effective prosecutor would put as many victims on the stand as were available at The Hague to testify. This ensures that as much evidence as was available is put on the record and is considered by the judge or the jury. However, with a goal in mind of being as efficient as possible, the prosecutor has different incentives when they are close to exceeding their time allotted by the quantitative formula. They may decide to only put on the legally required number of victims, rather than everyone that is available, in order to not exceed the allotted time. This would result in many victims/witnesses not being given the opportunity to testify and have their story heard, if they are similar to the other victims/witnesses and if the prosecution is running low on time. However, even if enough victims did testify to legally find a defendant guilty for the alleged crime, an appellate court may find that there was a problem with the testimony of one of the victims. In this hypothetical, for a crime like “mass rape” where there needs to be multiple victims from multiple villages, there may now be legally insufficient evidence for a conviction, and a whole retrial would be forced. The prosecution may be able to get away with being efficient over effective most of the time, but eventually, it will catch up to them.

3. Filing Fewer Charges

In addition to cutting proceedings short, the prosecution is incentivized to simply file fewer charges. By bringing fewer charges that are easier to prove, the prosecution is more certain that it will be able to finish the case within the specified timeframe. If they were to file more charges, there would be more uncertainty in whether the prosecution would be able to finish on time. There already exists a problem of filing charges that do not capture the gravity of the offense. For example, in the Lubanga trial, Thomas Lubanga Dylio was ultimately convicted of enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities (child soldiers).17 However, some of the crimes that Lubanga is accused of committing include murder, torture and sexual violence, and many outside organizations have condemned the ICC for not seeking or adding more serious charges.18 With the prosecution under a time deadline as a result of the implementation of the “Expeditiousness of Proceedings” performance indicator, there is an even greater likelihood that fewer and much less severe charges will be filed in a future case. This means that there is a serious concern of under prosecution, which may convey to some people that the ICC is condoning the atrocities that it is unwilling to prosecute. Incentives should exist to file legally supportable charges that fully capture the gravity of the atrocities, not to deter the prosecution of crimes that take more time or are more complex to prove.

B. Judicial

Prosecutors are not the only organs of the ICC affected by these performance indicators. Judges are similarly affected. Judges are elected for terms of office of nine years by the Assembly of States Parties to the Rome Statute, and are generally not eligible for re-election.19 Thus, judges do not have lifetime appointments, and have similar incentives to prosecutors to satisfy the Assembly of States Parties as well as the stakeholders of the Court.

Much like an effective prosecutor, an effective judge has a duty to ensure that the defendant’s rights are upheld. They should consider all arguments by the defense and the prosecution in a neutral and balanced manner, and should give deference in their goals to the goal of ensuring that the defendant is given a fair trial. However, given the nature of how judges are chosen, they are still under pressure by the Assembly of States Parties and stakeholders of the Court to meet performance indicators. This creates a number of incentives for the judge to cut proceedings short that judges would not have if this performance indicator did not exist or was applied more appropriately.

1. Reducing Time Estimates

One of the ways that a judge can keep court proceedings within the time allotted is to limit the amount of time the prosecutor has to present evidence. For example, before a court proceeding the judge will ask the prosecutor how long they expect to take for the upcoming proceeding. The prosecutor, knowing how much evidence there needs to be presented, will ask the judge for three hours, or however long is expected. But, a judge can instead instruct the prosecution to finish within a lesser amount of time, like one or two hours. Judges can constantly cut time off of a prosecutors estimates for every stage of the case to ensure that the case is completed within the time predicted by the performance indicator. This undermines the ability for the defendant to get a fair trial, because in cases where the presentation of evidence has to be cut short, the jury is not given the ability to consider the full extent of evidence available to the prosecution and otherwise ready for submission into evidence.

2. Reducing the Number of Evidentiary Hearings

ICC Trial Chambers have broad latitude and flexibility to rule on evidentiary issues during the trial.20 Thus, they may decide to, or decline to, hold hearings on evidentiary issues that involve complex or unclear areas of law. Holding such hearings expands the amount of time that a trial will take, as both sides may be given time to write and submit a brief for the Court to consider. These hearings help ensure that judges correctly apply the law. As such, it reduces the number of possible fair trial violations, and supports the notion of a fair trial for not only the defendant but for the victims. However, under the “Expeditiousness of Proceedings” performance indicator, judges will be incentivized to more frequently decline to hold such hearings. When judges are hurrying proceedings along, they may summarily deny to consider evidence that is highly probative of showing the defendant’s guilt without further briefing on the issue. If the defendant is thus found not guilty, issues like double jeopardy may affect the ability of appeals courts to reverse the prejudicial error. To the contrary, a judge could wrongly exclude evidence that is exculpatory for the defendant, which results in an appellate court remanding the case for a new trial. There should not be incentives to hasten proceedings when the methods to speed the trial along potentially hurt the ability of the Court to conduct a fair and thorough trial.

3. Acting Too Political

David Hoile, the Director of the Africa Research Centre and author of Justice Denied: The Reality of the International Criminal Court, a 610 page study of the ICC, argues that the relationship between appointments to the ICC and vote-trading between states is an open secret.21 He argues that the sheer corruption of the process aside, the reality is that vote-trading results in mediocre judges which in turn leads to a dysfunctional, politicized court.22 Far from being lifetime appointees, judges in the ICC can be considered diplomats and politicians, and thus are not insulated from consequences or outside pressures for their day-to-day actions. Thus, judges may be extremely concerned with meeting the “Expeditiousness of Proceedings” performance indicator. This is because, in contrast to the idea of judicial sovereignty, they have to answer to not only the ICC but to the people who were responsible for their judgeship. Because terms are only 9 years, judges are reliant on maintaining a good relationship with these international political actors, and thus can become political actors themselves. This means finishing trials in an expedient manner, even at the expense of a fair trial for the defendant.

C. Managerial

The other category that the ICC hopes to improve through these performance indicators is its managerial functioning. The “Expeditiousness of Proceedings” performance indicator primarily affects the functioning of the other categories, prosecutorial and judicial. However, the management of the ICC will have its own difficulties in properly categorizing, quantifying, and accurately reporting data for this performance indicator.

1. Problems with Categorizing

The intention is to report progress to States in early 2017 on the basis of the first year’s comprehensive data covering in particular the time taken between different stages of each case.23 The eventual performance indicator would be: The degree of variance from the expected duration for each major procedural phase per case, based on an assessment of the complexity of the case and the number of defendants.24 The Court has also articulated a number of factors that it will consider in making benchmarks for expected durations of each stage of a case, including:25

the number of accused persons,
their position(s) within a political or military hierarchy,
the number and nature of the charges,
the volume of evidence and likely number of witnesses,
the complexity of the legal and factual arguments involved,
whether the case raises significant novel legal or evidential issues,
the geographical scope of the case (localized or extensive),
the scale of the victim communities affected.

From this, it will “develop a solid methodology for estimating the duration of current and future cases,” with which the Court would declare its targets and justify deviations from them.

Based on this desired performance indicator, ICC management is supposed to categorize cases based on an assessment of the complexity of the case and the number of defendants. Within these categories, the ICC would analyze whether the Court is becoming more efficient in meeting its time estimates for each stage of proceedings. But, for the complexity of the case factor, there are a multitude of very different factors in which to consider. How ICC management chooses which factors to consider when categorizing “complexity of the case,” and the amount of weight to give each factor, may have a drastic impact on the expected durations of each stage. This could affect the amount of evidence prosecutors have time to present, or the amount of time a judge requests each proceeding to take when the case is being adjudicated. And, given that each case is so unique, factors that are given more weight in determining the length of time for one case may not carry much weight at all in determining the appropriate amount of time another case should take. This creates a lot of issues, and the report gives management of the ICC little specific guidance when deriving formulas for these time estimates.

2. Too many Unquantifiable Factors

The management of the ICC wants to be able to predict the duration of each stage of a case based on a quantitative formula, taking into account variables like the number of defendants, the amount of evidence, or the potential amount of legal issues. However, when looking at a new case, there are a number of factors that affect the length of a case that are unquantifiable from the outset. For example, the defenses the defendant may raise or choose not to raise can greatly impact how long a proceeding will take. A defense attorney may raise every possible defense, or only the ones with a chance of prevailing. Defense strategy is very often an area where equally equipped and experienced counsel may diverge.26 Some thoroughly question every witness as a matter-of-course, while others only thoroughly question the key witnesses or the ones most likely to give damaging testimony. The sheer complexities of the ICC, as opposed to other court systems, can produce wildly divergent (yet both effective) defense strategies. Data cannot predict what the defendant’s strategy will be before the case is adjudicated and a defense attorney has even been assigned to the defendant.

Another factor that cannot be determined by data at the outset of the case is the quality of the testimony of the victims/witnesses. When reading reports of interviews, victims/witnesses may seem like they will be able to testify to all of the elements of the crime, and will be able to give full and credible answers. However, when actually on the witness stand and under oath, they may not be able to testify to what the author of the report wrote down during their previous interview. They may be fully willing to cooperate, but unable to assist as much as they would like based on incomplete reports or being nervous when testifying. Or, as discussed earlier, many victims/witnesses have been further victimized by witness intimidation, affecting their ability or willingness to testify. This can cause the proceeding to take much longer than expected, while not being the fault of the prosecution or the judge. These factors all have a drastic impact on the length of the case, but are not readily measurable or quantifiable before the case has even begun adjudication.

3. Potential for Abuse

Given the problems of categorization, the data for “Expeditiousness of Proceedings” also makes it possible to manipulate data to show improvement where they may be none. For example, management may come up with five categories, such as “State cooperating,” “State not cooperating,” etc., and further delineate from there. In its report to the Assembly of States Parties, it wants to show that it is meeting time estimates at an improved rate from year to year. But, the ICC prosecutes a very small number of cases.27 Thus, a few lengthy proceedings may make their percentages fluctuate greatly. However, with ICC management in charge of what data is to be released, it may not be difficult to re-categorize a case so that the percentages are seemingly still improving. Perhaps another category has had very expeditious proceedings, so that a few very long proceedings would not change the overall trend of improvement. Or, in knowing that a case is likely to take a longer time than estimated, management could categorize it with cases that are likely to take place quicker than the quantitative formula suggests. So, when the reports are released, the Assembly of States Parties and stakeholders of the Court may take away a different picture than what really happened. With such a large budget, ICC management may feel compelled to justify the effectiveness of the ICC at every opportunity.28 This makes it difficult to assess whether or not “Expeditiousness of Proceedings” is meaningfully measuring performance, or whether it would become a measure regularly manipulated for political purposes.

IV. A Better System

Expeditiousness of proceedings is an important factor to consider in certain situations. To see how it can be measured and used effectively, it is helpful to consider how time estimates are used in American criminal cases.

A. Background of how Time Estimates are used in an American State System

In the author’s own experience working in multiple different state prosecutors offices in California, measuring how long a court proceeding will take occurs for the primary (and usually only) purpose of the courtroom managing their calendar.29 The judge will ask the prosecutor, usually on the day that the court proceeding is set, how long it is expected to take. The court notes the response for the purpose of determining how many other matters it will hear that day. This determination process is entirely non-formulaic and not quantitative. It is decided by the subjective judgment of the prosecutor, looking at all the facts, interviewing all of the witnesses, and considering all of the legal issues. Using their background, training, and experience, they make an educated prediction on how long it will take. The management of the District Attorney’s Office is unconcerned with how long it takes, and only is informed that the time estimate has been exceeded if the Court staff proactively complains to the management of the DA’s office. The Court staff would do this if they felt aggrieved from being unable to hear the rest of their docket as a result of an inaccurate time estimate from the prosecutor. This would result in a reprimand from the DA management to the prosecutor on that case. However, if the time estimate was justifiably exceeded, because of an unforeseen circumstance like a difficult witness, the Court would just reschedule the rest of their docket and not bring up the issue further. The exact amount of time that each court proceeding ended up taking is not documented or recorded in the case file for any future use.

B. How this is Applicable to the ICC

It is inherently difficult to make any meaningful comparisons between the ICC and a state-level criminal trial court system because, although many judicial bodies apply performance management systems, the methodologies used are often difficult to apply to the ICC, given its relatively limited number of cases and the diversity of underlying country situations.30 That being said, for measuring and utilizing “Expeditiousness of Proceedings” applicable principles can still be found from looking at American state court systems, which also support the unique goals of the ICC.

American state courts have vast swaths of data, and could very easily run data analysis to find average court proceeding lengths with statistically low margins of error. But, they do not because it would not produce a meaningful statistic. A number derived from a quantitative formula should not determine how much time a criminal proceeding gets in court. Unique factors to each case, that change from case to case, ultimately should determine how long a case takes. A prosecutor or a judge should not feel outside pressure from a formula to conclude the proceeding before they feel the matter has been fully, properly, and completely adjudicated.

Also, for the purposes of estimating time for a particular court proceeding, non-quantitative methods are better able to capture the conflicting factors that vary in significance from case to case. There are too many non-quantifiable factors that a human could meaningfully account for, that a formula could not. These include factors involving fluid human emotions from victims/witnesses, as well as varying defense strategies. It would be easier for an experienced prosecutor/judge to determine the influence of these factors, both by interviewing victims/witnesses before the court proceeding starts, and by knowing who is likely to be the defense attorney on the case. In addition, these estimates need to be made in close proximity to when that court proceeding happens. It is not possible based on past data, contrary to what the ICC wants, to predict how long an appeal should take in a future case that has not even started to be adjudicated at the trial level.31 An experienced prosecutor, having conducted multiple trials at the ICC or similar tribunals, could make a fair estimate after the trial is over and before the appeal begins, based primarily off of their knowledge of typical appeals and analyzing the trial that just happened.

C. How the ICC can Refine this Performance Indicator

An experienced prosecutor or judge, understanding all the facts of the case and the difficulties therein, should make a time estimate just prior to that court proceeding. This should happen multiple times during a case, before each court proceeding. Then, to ensure that prosecutors and judges are cognizant of the important goal of being efficient, without sacrificing effectiveness, it should be documented whether or not the court proceeding is completed within that timeframe. By doing this, efficiency can be measured and worked towards in a particularized and individualized manner. Given the limited number of cases dealing with the types of crimes that are to be adjudicated, past data can be measured and analyzed to give the prosecutor/judge a better understanding of how long other cases have taken when they are making their predictions. But, any takeaways from this data should be secondary to that persons own knowledge and experience in prosecuting, managing prosecutions, or acting as a judge in these types of cases. And, these judgments must happen in close proximity to each court proceeding if they are to be accurate predictions off which the performance of the prosecutor and judge is to be analyzed.

By using the “Expeditiousness of Proceedings” performance indicator in this way, the ICC would be able to accomplish its goals for this performance indicator while not compromising any of its other goals.32 It would create realistic estimates that prosecutors and judges would strive to complete the proceeding within. These estimates would be more realistic because it is made by someone who has knowledge of all of the complexities that a formula would be unable to pick up on a case-by-case basis. Thus, the different organs of the Court would constantly work at improving efficiency while not sacrificing any other aspects of prosecution. In addition, by abandoning the idea of quantifying a complex criminal proceeding, it is much easier to account and document abnormalities during court proceedings. A quantitative method of estimating times will nearly always fail to account for something that has a major impact on the duration of a proceeding. By an experienced practitioner subjectively estimating the amount of time that each court proceeding will take, accurate predictions will be more frequently given. Thus, judges and prosecutors will feel more comfortable exceeding the time estimate in the rare times that this justifiably needs to be done, because it would happen much more infrequently than when a formula makes predictions.

V. Conclusion

Using “Expeditiousness of Proceedings” as a performance indicator, as currently envisioned by the ICC, has unintended negative consequences. It gives incentives for the prosecution to cut proceedings short through direct examinations and re-direct examinations, putting on less victims/witnesses to testify, and filing less charges. It provides incentives for judges to cut time estimates short, hold less evidentiary hearings on disputed issues of law, and act political to satisfy different international political actors. In addition, it complicates the role of ICC management in properly categorizing different cases, quantifying factors that are unable to be properly quantified, and creates an opportunity to show improving numbers solely by manipulating data. A better solution would be to measure expeditiousness of proceedings from an experienced prosecutor or judge looking at each proceeding before it occurs, predicting how long it will take, and measuring how often each proceeding is completed in each allotted amount of time. By doing this, the ICC can strive towards its goal of expeditious proceedings, while also ensuring that effectiveness is not substituted for efficiency, and that the highest level of fairness possible is upheld for defendants, victims, and the international community.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
See International Criminal Court, Report of the Court on the Development of Performance Indicators for the International Criminal Court (Nov. 12, 2015) [hereinafter First Report], available online, archived. ↩
2.
Id. ↩
3.
Assembly of States Parties, Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/13/Res.5 (Dec. 17, 2014), available online, at Annex I, ¶7(b) p.47. ↩
4.
See First Report, supra note 1. ↩
5.
Id. ↩
6.
Id. ↩
7.
Id. ↩
8.
Id. ↩
9.
Id. ↩
10.
Id. ↩
11.
See International Criminal Court, Strategic Plan 2013–2017 (Interim Update—July 2015) (Jul. 24, 2015), available online. ↩
12.
See First Report, supra note 1. ↩
13.
Id. ↩
14.
Mark Kersten, Intimidated Witnesses, ICC Judges, and ‘Justice’—Mission Creep or a Revolution Long Overdue?, Just. in Conflict (Jun. 2, 2016), available online. ↩
15.
Catrina Stewart, ICC in the Dock over Kenya Trials, The Independent, Dec. 6, 2013, available online. ↩
16.
Id. ↩
17.
See Lubanga Case, ICC, available online (last visited Jul. 16, 2017). ↩
18.
Avocats Sans Frontières et al., Open Letter to ICC Prosecutor, DR Congo: ICC Charges Raise Concern (Jul. 31, 2006), available online. ↩
19.
See International Criminal Court, The Judges of the Court, ICC-PIDS-FS-04-012/15_Eng (May 12, 2015), available online. ↩
20.
See Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, Arts. 64(9), 69(4) [hereinafter Rome Statute] available online; and see International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 63(4) (2013), available online, archived. ↩
21.
David Hoile, Time to Defund the International Criminal Court, Int’l Pol’y Dig. (Nov. 25, 2015), available online. ↩
22.
Id. ↩
23.
See First Report, supra note 1. ↩
24.
Id. ↩
25.
Id. ↩
26.
Karim A. A. Khan & Anand A. Shah, Defensive Practices: Representing Clients Before The International Criminal Court, 76 Law & Contemp. Probs. 191 (2013), available online. ↩
27.
David Davenport, International Criminal Court: 12 Years, $1 Billion, 2 Convictions, Forbes, Mar. 12, 2014, available online. ↩
28.
Id. ↩
29.
District Attorney Offices in Southern California prosecuting criminal violations of state law. ↩
30.
See First Report, supra note 1. ↩
31.
Id. ↩
32.
Id. ↩

Mehrunisa Ranjh
6298
July 30, 2017
10:52 am

Measuring Victim Access to the International Criminal Court: Peace as the Ultimate Goal of International Justice

Introduction

The creation of the International Criminal Court (“ICC”) was an attempt to traverse previously uncharted territory by setting up a permanent, truly international court that would remain impartial, expeditious, and transparent in the face of huge and often conflicting external pressures. The court was envisioned as a bastion of global justice and fairness, and an advocate for the otherwise voiceless victims of atrocious crimes against humanity. Given these lofty goals, it is perhaps unsurprising that the court has faced more than its fair share of growing pains and criticisms along the way. Most recently, the alarming development of Burundi, the Gambia, and South Africa’s decision to withdraw from the court.1 Initially rationalized as a phenomenon contained to Africa,2 the concern over state withdrawals has ratcheted up in recent days as Russia has also withdrawn from the Court.3 In this moment of great flux and uncertainty for the court, it is more critical than ever for the court to pause and analyze its past performance and to course correct before it is too late. This kind of exercise can serve a number of important functions. It is necessary in order to recognize the meaningful work that has already been done, and to arm the court with a record of concrete facts and data as proof positive against its detractors. But the function of such an exercise cannot be purely ceremonial or self-laudatory, or the exercise itself becomes additional fuel to the firestorm of criticisms facing the court. Therefore, the court and supporters of the court must cast a truly critical eye upon its past performance with a renewed commitment towards striving to achieve its original promise as an instrument for a more peaceful and just future for the global community. To this end, the court has recently set out four performance indicators to assess the court’s performance.4 My contribution to this exercise is an analysis on whether the court currently allows for adequate victim access. I argue that the current level of victim access, though technically abiding by the mandates of the Rome Statute, is woefully inadequate to achieve the original vision and promise of the ICC.

The drafters of the Rome Statute devised a system that could achieve substantive justice for victims through the procedural safeguards of ensuring their access to the court. The Rome Statute was unique in setting up a court system that would take victims’ interests into account throughout the course of its investigations, trial process, and in determining what kind of reparations victims should receive.5 Therefore, the ICC was hailed as “the victim’s court” by many commentators at its inception.6 The major flaw in the victim participation model was that the although some victim participation was required, the court had massive discretion in whether to put victim concerns into practice. Thus, the court has chosen to focus almost entirely on satisfying the low threshold of ensuring token victim participation while not interrogating the larger vision of the Rome Statute: “the peace, security and well-being of the world.”7 I argue that active victim participation, consultation, and consideration should be a mandatory part of the ICC’s process because this process will ensure the substantive fairness and effectiveness of the court’s results. Through this mechanism, the court will be able to tailor its punishments and remedies in a way that will ensure victim focused justice.8 This, in turn will help create more community oriented and lasting solutions aimed at creating long-term peace rather than temporary retribution. This change will allow the court to finally live up to the spirit, and not just the letter of the law set out in the Rome Statute.

This comment will proceed in three parts. In Part One, I will attempt to arrive at the original purpose behind the creation of the ICC, through a brief examination of the text and purpose of the Rome statute. In doing so, I will try to answer the following question: what is the harm that the drafters of the Rome Statute intended to remedy through the creation of the court and how did victims figure into this overall scheme? In Part Two, I will first analyze whether victims do in fact “have adequate access to the court.”9 I will also consider how this reality of victim participation comports with the vision of the Rome Statute. Finally, in Part Three, I will use contemporary examples from various international adjudicative bodies to postulate ways in which the ICC can alter its own course before it has strayed too far away from its original promise. I will also outline the many benefits to be gained from such a re-orientation.

I. A Purposivist Reading of the Rome Statute

Unlike many treaties, the Rome Statute does not outline any special guidelines for its interpretation. Therefore, I will apply general rules of international treaty interpretation to figure out the intended role of victims within the court. Article 31(1) of the Vienna Convention on the Law of Treaties provides that:

[A] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.10

Additionally, Article 32 provides that:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning.11

To this end, I will interpret the textual provisions dealing with victim participation alongside the object and purpose of the court as a whole. In doing so, I will attempt to answer the question: what is the harm that the drafters of the Rome Statute intended to remedy through the creation of the court and how did victims figure into this overall scheme?

The text of the Rome Statute mentions victims over forty times.12 Cumulatively, it grants victims a vast array of rights including: protection from retaliation, participation in the proceedings of the court, reparations, and the right to submit observations, or make representations to the Pre-Trial Chamber.13 The statute also calls for the creation of a “Victims and Witnesses Unit within the Registry” to oversee the protection of these rights.14 Whilst most of these rights concern the physical or psychological wellbeing of victims, there are some instances in which the statute gives victims the affirmative right to be heard or the right to be considered in the court’s decision making processes. The statute requires that the Prosecutor take “the interests of victims” into account in initiating an investigation, and in conducting an investigation.15 And although, it does not require judges to take victim interests into account when rendering their decisions, it nonetheless gives the court the authority to:

Make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, include restitution, compensation and rehabilitation.16

Therefore, consideration of the victims’ wishes and interests can play a direct role in the way in which a defendant is “punished” for his or her crimes.

Although there are a great deal of victims’ rights outlined in the Rome Statute, most of the language in the statute is either permissive or situation dependent. Therefore, it gives the prosecutor and other administrators of the court wide discretion in when to take victim’s interests into account. Given these ambiguities, we can consider the preamble of the statute next for some clarification on how to interpret victim participation in light of the big picture goals set out by the Rome Statute.

Although couched in general terms, there are a number of normative values baked into the preamble of the Rome Statute. The peace and stability of the world is heavily emphasized. It begins with a recognition of the “common bonds” that unite all people and a concern “that this delicate mosaic may be shattered at any time.”17 This statement implies that unity and togetherness is desired while anything that would seek to divide people is seen as a threat. Additionally, it acknowledges that “during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity” and that “such grave crimes threaten the peace, security and well-being of the world.”18 Thus, the preamble conceives violence committed against a discrete community of people as an act of aggression and a “shock” to the collective consciousness of the global community.

With this firm commitment to the communitarian values of unity and peace, the Rome Statute paradoxically views individualism as the means of achieving and maintaining these values. It vows:

[T]hat the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured.

To this end, it makes a commitment to:

[P]ut an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.

This creates a fundamental tension between the goals of the court—a global, unified, and peaceful community—and the means of achieving these goals—prosecuting and punishing individuals who violate these community norms. Therefore, it conceives of a largely peaceful world threatened by a few “bad apples” whose removal from society, retribution, rehabilitation, and subsequent return to society would create a more peaceful world.19

Given the contradictions and ambiguities inherent in the general purpose statements of the preamble of the Rome Statute, it is even less clear what the intended role and rights of victims are. With a firm commitment to its normative conception of individualist justice, does the Rome Statute leave any room for victims’ input into preferred methods of bringing perpetrators to justice? I think that the Rome Statute lends itself to varying conceptions of justice, punishment, and even individualist v. communitarian commitments depending on a given situation. The court must include victims in determining the direction and scope of these general commitments contained within the Rome Statute because it cannot apply a one-size fits all approach to justice in the context of international criminal law.

II. The Status Quo: Do Victims Have Adequate Access to the Court?

In the recent Report of the Court on the Development of Performance Indicators for the International Criminal Court, the court set out the four performance indicators to assess its own performance including assessing whether [v]ictims have adequate access to the Court.”20 It is difficult to ascertain what the court means by “adequate.” I will construe “adequate” in light of the original purpose and mandate of the court to include a variety of different considerations: do victims feel like they can easily communicate with the court, and that if they are able to communicate with the court, they are being heard? Does the court maintain adequate contact with victims? Do victims feel a sense of closure or satisfaction from the court’s decisions? How could more active participation from victims influence the way in which the court conducts itself? Finally, what reasonable standard of victim participation and access should the court strive for?

Human Right Center and Berkeley University recently conducted a comprehensive study of over 622 victim participants of the ICC, by interviewing victims from Uganda, the Democratic Republic of the Congo, Kenya, and Côte D’Ivoire about their interactions with the court.21 Although the victim participants were generally quite critical of their interactions with the ICC, there was a near complete consensus across victim participants that they valued their interactions with the ICC most when they felt that the court was giving them a voice, and listening to their stories in order to bring about positive change.22 One Kenyan victim participant noted:

When they come, learn from us, and write reports, I feel the goodness in it.23

Another victim participant from Kenya stated:

I’m ready to provide testimony because the shoe wearer knows where it pinches. It really pinches me. I lost everything. I lost my wife because of the post-election violence, so it pinches me, even right now as we speak today, so I can participate in any other way, either by a person or by any means. If I’m called to do that, I’ll do it.24

Another participant from Côte D’Ivoire explained that:

Morally, I feel relieved. I do not know how to explain. It did not change anything physically, but morally, it is one way for me to honor people who perished during the crisis.25

Although these victims were physically far from The Hague, the mere perception that their voices were being heard by the court gave them both moral and psychological satisfaction. This participation allowed victims to re-frame their traumatizing experiences through the act of sharing them with the world in the pursuit of justice. These experiences illustrate the importance of at least fostering a perception among victims that their voices are heard and considered by the court when it makes decisions regarding the people who hurt them in unimaginable ways.

The report also found that victims often lacked trust in the ICC as a result of the court’s “failure to keep in regular contact with victim participants” during the course of investigations.26 One particular victim put this feeling amongst the victim population succinctly by stating:

Ever since I filled in my application nobody has ever come back to me, and the court keeps on telling me “to wait, to wait.” I am getting fed up. I have a feeling they (the Court) just want to use our applications for their personal gains or to fulfill their selfish interests.27

This perception signals how the court’s lack of communication with the victims leads to perceptions that victims have been abandoned or used by the court. This is anathema to the idea of “adequate access” for victims because if victims feel abandoned, it removes them completely from being active participants in their own case.

Many victims also reported an expectation or implicit promise by the court to them that they would get receive monetary reparations of some sort.28 Many victims felt duped when they failed to receive monetary compensation or when this compensation took longer than expected.29 Overall, this is another indication that victims are not receiving adequate information of court policies, are not being apprised of their options for compensation, and are given no say in these options. This is another context in which it is important for the court to provide victims complete information a mechanism for letting the court know their preferred method of compensation, whether economic or otherwise. Giving victims the ability to choose their method of compensation is included in the Rome Statute and is fundamental to allowing victims to regain their dignity and agency in the wake of the atrocities they have suffered.

As these accounts show, the ICC has a very minimal actual presence in the lives of the victims it purports to protect. Even greater than the ill effects of this piecemeal approach to victim outreach and management upon victims themselves, is the impact of such an approach on the legitimacy and effective functioning of the ICC. The fundamental problem with failing to track what outcomes the majority of victims want, and failing to go through some sort of advice and comment period where victims have the ability to make their preferred remedial outcomes known to the court, is that the court no longer has any legitimate basis upon which to craft remedies. Thus, it often imposes Western values of justice and retribution in situations where these values cause more harm than good.

Scholars have tracked the dichotomy between the results victims want and the results that are generally acceptable under the current structure of the ICC. Whereas victims often want peace and stability, the ICC’s priority is on prosecution and retribution. As one victim put it:

The well-being of the country is important to me. It is what makes me feel good.30

This statement is very much in line with what studies of victim’s preferred outcomes have shown. One such study of Ugandan victims showed that the main priorities for respondents:

[W]ere health care (45%), peace (44%), education for the children (31%), and livelihood concerns (including food, 43%; agricultural land, 37%; money and finances, 35%).31

Additionally, “[o]nly 3 percent of respondents mentioned justice as their top priority.”32

These statistics show that often, victims are more concerned with accountability rather than payback, revenge, or retribution. Victims often value truth-seeking and reconciliation and are willing to “compromise through amnesties or pardons in order to allow the peace process to succeed.”33 The study found that “most respondents (65%) said those who received amnesties should first apologize before returning to their communities.”34 This is striking because it shows that victims are often willing to forgive a perpetrator after adequate effort has been put into revealing the full extent of that perpetrator’s crimes, and some sort of apology has taken place. Therefore, instead of the ICC assuming that all victims across all cultural contexts want convictions and incarceration for their perpetrators is not only false and futile but also a huge waste of the court’s resources. If the court involved victim groups in every aspect of its procedures, the court could tailor prosecutions, plea bargaining deals, post-conviction relief and reparations all to meet the needs of the affected communities and to strive for peace rather than temporary solutions.

A perfect example of this is Uganda where victims envisioned the ICC’s role very differently from how the court envisioned its role in the country. Victims saw the ICC as a “useful source of pressure on the LRA to participate in peace negotiations but [did] not want the court to hinder a settlement that [would] end the war and bring a sustainable peace.”35 Therefore, victims were both optimistic and cautious about the effect the court would have on the LRA. Had the court sought the help and advice of victim groups from the beginning of its intervention in the country, it could tailor its approach towards the LRA with the victim’s interests in mind to not only prosecute for past crimes but also prevent future crimes from occurring or for being the catalyst of more strife.

Over the course of modern western history, there have been varying conceptions of the meaning of justice. For much of this time, the idea of justice has been at odds with the idea of peace on both the domestic and international stage.36 Conventional ideas of justice were centered around the concept of seeking retribution from the perpetrators of crime at the exclusion of all other motivations.37 It was reasoned that visible and harsh punishment for one perpetrator would lead to deterrence of crime across the board as others would reconsider their impulses to commit crime in fear of the punishment.38 Thus, retribution served the feel-good impulses of gaining revenge for the harmed party, punishing the guilty party, and setting a stark example for others prone to commit crime.39 There was little consideration of what would happen once the guilty party returned back to society from his or her punishment or isolation, and even less to how the perpetrator would be able to live alongside his victim and vice versa.40 Even though retribution seldom leads to peace, it is still the preferred model of punishment in the US and many other Western societies.41

This consequences of retributive justice are even more stark in the context of modern international criminal law. The majority of crimes that implicate international law are committed by and against communities that have coexisted in close geographical proximity to one another for centuries. Much of the violence between these communities is cyclical with a long history of atrocities committed on both sides. Applying traditional ideas of retribution to such communities might lead to peace in the short run but will ultimately perpetuate cycles of violence and instability. By failing to include victim voices throughout the various processes of the court, and by focusing on prosecution and punishment above all, the ICC has failed to consider particularized cycles of violence within nations which require a particularized approach to the concepts of justice, punishment and reparations.42 Because of this, the court has failed to take heed of the voices of the victims calling for reconciliation and healing rather than retributive justice, and come up with short sighted solutions.

III. Course Correction: Transitioning to a Peace Based Conception of Justice

One of the oft cited justifications for the ICC’s lack of strict internal goals and objectives is the relative youth of the court. When faced with facts about how few investigations and prosecutions have been completed over the course of the past 14 years for example, the court has deflected by saying that this is the result of the court still not having a large enough sample size of past cases to use as a benchmark to evaluate its future performance. But this is not strictly true. It is true that the court’s own repertoire of cases is short but it is not true that the court has nothing to compare itself against. The rise in globalization and increasing reliance on international law has provided plenty of successful and unsuccessful models of international adjudicative bodies for the court to compare itself to. The premise that we have to wait to build ICC specific standards is deeply flawed.

In fact, the ICC itself came out of a tradition of temporary tribunals set up to deal with specific conflicts that first began with the Nuremberg Military Tribunal (“IMT”), the court system set up to try the remnants of the Nazi leadership shortly after the end of World War II.43 Subsequent tribunals of this sort included the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). There was no affirmative right for victim participation in the Nuremberg trials. The ICTY was the first special tribunal set up to try crimes against humanity since Nuremberg and was the sight of a number of innovations in international criminal law practice.44 The victim participation measures instituted by the ICTY included the “Victims and Witness Units” to support victims in their interactions with the tribunal.45 The tribunal also had the power to develop special procedural rules or measures for the protection of victims and witnesses.46 Finally, ICTY was the first time an international criminal court attempted to institute a system of victim reparation and compensation.47 Nonetheless, victims had no formal role within the ICTY.48 A number of studies on victim perceptions regarding the fairness of the ICTY’s adjudications have found that victims are generally skeptical about the neutrality and effectiveness of the ICTY.49 Furthermore, there is no evidence to show that the societies where these tribunals operated have achieved lasting peace between the formerly hostile communities.50 In fact, the Bosnia and Herzegovina that emerged from the conflict continued to be deeply divided along ethnic lines. Twenty years after the conflict, the federation is crippled by lingering anger and despair between the two communities.51 There is still similar strife between the Hutus and Tutsis of Rwanda.52

Unlike the retributivist models of international justice which continue to face their fair share of criticism, there are alternative rehabilitative and reconciliatory models of justice that the court should seek to emulate.53 One such model, outside of the context of human rights is the World Trade Organization’s (“WTO”) dispute resolution body.54 Although the ICC and the WTO deal with very different situations and pressures, there are some fundamental lessons that the ICC can learn from the WTO Dispute resolution system. By the 1980s, The General Agreement on Tariffs and Trade (“GATT”) was starting to face serious difficulties in keeping up with changing realities of modern international trade.55 The GATT’s dispute settlement system was rife with problems a lack of disciplined procedures and difficulties reaching agreements between parties.56 Therefore, in 1995, the old GATT system was replaced by the WTO and the WTO dispute resolution system.57 This new system emphasized, among other things, prompt settlement of disputes through arms-length discussion between parties of their problems with the goal that parties would settle disputes themselves.58 Prior to adjudication, all parties are required to go through consultation and mediation.59 This new dispute resolution system became one of the most successful adjudication bodies in international law.60

Although substantially different from the WTO in almost all respects, the ICC can learn a number of lessons from this example: most importantly, that the climate of world politics is in constant flux, and that international organizations such as the ICC must be adaptable and willing to adapt in order to remain relevant in the face of these changes. The world in 2016 is seeing an unprecedented number of global crises which have led to mass displacement, widespread atrocities, and untold suffering for millions of people. In order to meet the challenges of this volatile era, the world needs an effective, quick acting ICC that is focused on solving problems and creating peace rather than simply laying blame or punishing. In order to do this, the ICC has the most to learn from victims.

Another lesson the ICC can learn from WTO is that it is efficient for a court system to have both formal and informal dispute resolution mechanisms. Currently, the ICC’s only mechanism for meting out justice is through prosecutions and convictions. But, like the WTO, the ICC should consider setting up an informal case resolution mechanism in addition to its existing formal system, where victims and perpetrators are given the chance to enter into dialogues with one another for the express purpose of reconciliation and long term stability. Creating an ancillary body dedicated to oversee this more informal system would exponentially increase the capacity of the ICC to handle cases. This would mean that the court would have a greater ability to do justice in this world. An ancillary body to handle informal case resolution would also allow for greater victim participation in the process of ensuring that justice is done. This would subsequently allow victims the opportunity to tell their stories alongside other victims and obtain some level of healing.

Even if the court does not create an ancillary body or ancillary procedure for informal reconciliation between victims and perpetrators, the court should incorporate principles of restorative justice into its primary substantive and procedural approaches to case resolution.61 While Western models of retributive justice have yielded mixed results to the long term peace and stability of a society, restorative justice has been deployed successfully by many societies throughout history and in modern times, to create lasting peace. This is especially important for the cases the ICC handles because the majority of the court’s cases have concerned developing nations where traditional and local conceptions of justice often align more closely with restorative rather than retributionist policies. Therefore, it will be less disruptive in these societies to apply principles that are closest to their own criminal justice principles. Additionally, as many surveys of victims have shown, the vast majority of victims prefer peace and other indicators of societal stability such as health care, and economic development, to conventional ideas of justice (only 3 percent of Ugandan victims listed “justice” as one of their main priorities).62

The major criticism of a forgiveness based, victim focused philosophy of justice is that it does not have a deterrent effect on either the specific people involved in committing the atrocities or on non-involved parties who may have the impulse to commit similar crimes but be deterred by the prospect of harsh punishment.63 Although criminal justice scholars have contested whether harsh retributionist regimes do in fact have a greater deterrent effect, I will provide an alternative argument for why a forgiveness-based, victim-focused court might lead to more deterrence overall than the current punishment based model. I argue that the greatest tool for deterrence in the court’s arsenal is the court’s own legitimacy. Currently, the court is facing a wave of harsh criticisms regarding its efficiency, effectiveness, and impartiality. The culmination of these criticisms has brought the court’s legitimacy to an all-time low as South Africa, Burundi, the Gambia, and Russia have withdrawn from the court.64 The best way to fight back against these criticisms and regain legitimacy is to strive towards the vision of the court originally imagined by the drafters of the Rome Statute: a vision that imagined a court that would be an instrument for justice through peace.65

Peace as the ultimate goal of the court would be far more effective than prosecutions. While successful prosecutions might deter one specific perpetrator from committing similar crimes in the future and maybe scare some people away from committing similar crimes, peace is much more effective guarantee of future deterrence. In a well-functioning society with economic stability and plenty of opportunities, there is generally much less incentive to commit crime. Additionally, forgiveness can lead to reconciliation between societies that may have been caught up in endless cycles of violence and retaliation for centuries. Breaking these cycles of violence is the best way to ensure that “the most serious crimes,” the crimes that fall within the ICC’s jurisdiction, happen less frequently.

If the ICC strives to become an instrument of peace and stability in the world, this will increase the chance of nations willingly subjecting themselves to ICC jurisdiction. Currently, there is no good indication that the ICC or other courts in the same vein have actually caused increased stability in any region. Conversely, bodies like the WTO dispute resolution arm which have a proven track record of fostering good and healthy relationships between nations, have no problem attracting and retaining nation states as members. Unlike the ICC, the WTO dispute resolution body fosters stability within and between nations by allowing for effective conflict resolution and the healthy rebuilding of damaged relationships. It is ironic that conflict resolution in the context of international trade is such a widely accepted practice while the same practice in the context of victims of violent civil strife is much less accepted and sought after. One would imagine that it should be the other way around, that the victims of rape, and torture, who have lost loved ones and who are subsequently expected to live in eternally broken and fractured societies be given all the chances possible to find peace while the world might overlook a few fractured business relationships. But alas, we are not there yet.

Conclusion

The ICC came into existence to fill a void in the world: a permanent court of criminal justice always striving to protect the interests of the most vulnerable in society: the victims of atrocious crimes against humanity. In recent years, the ICC has strayed a little from this original promise by forgetting it raison d’etre: the creation of a more fair and peaceful world for victims and perpetrators alike. It must regain a strong commitment to this original purpose if it is to survive the challenges of the upcoming decades.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
See Joel Wickwire, South Africa to Withdraw From International Criminal Court, Liberty Voice, Nov. 7, 2016, available online; Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online; ICC to Investigate Burundi Political Violence, Al Jazeera, Apr. 25, 2016, available online. ↩
2.
See, e.g., Aryeh Neier, Africa Versus the International Criminal Court, Project Syndicate, Nov. 7, 2016, available online. ↩
3.
Russia Pulls Out From International Criminal Court, Al Jazeera, Nov. 16, 2016, available online.

(“‘The court has unfortunately failed to match the hopes one had and did not become a truly independent and respected body of international justice,’ the ministry said, adding that in the ICC’s 14 years of work ‘only four verdicts’ have been passed, while $1bn was spent on expenses.”). ↩
4.
International Criminal Court, Second Court’s Report on the Development of Performance Indicators for the International Criminal Court (Nov. 11, 2016), [hereinafter Second Report], available online, archived. ↩
5.
Sam Boris Garkawe, Victims and the International Criminal Court: Three Major Issues, 3 Int’l Crim. L. Rev. 345 (2003), HeinOnline paywall, Brill paywall. ↩
6.
See id.; Jo-Anne Wemmers, Victims and the International Criminal Court: Evaluating the Success of the ICC with Respect to Victims, 16 IRV 211 (2009). SAGE paywall, ResearchGate paywall. ↩
7.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Preamble, available online. ↩
8.
Eric Blumenson, The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court, 44 Colum. J. Transnat’l L. 801, 819 (2006), available online. ↩
9.
The term “adequate access to the court” has been set out as one of four performance indicators in a recent report by the court on the development of performance indicators. See Second Report, supra note 4. ↩
10.
Vienna Convention on the Law of Treaties, art. 31(1), May 23, 1969, 1155 U.N.T.S. 331, available online. ↩
11.
Id. at art. 32. ↩
12.
See generally Rome Statute, supra note 7. ↩
13.
Id. ↩
14.
Id. ↩
15.
Id. ↩
16.
Id. ↩
17.
Id. ↩
18.
Id. ↩
19.
See generally Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, 99 Northwestern Law Review 539 (2005), available online. ↩
20.
See supra note 4. ↩
21.
Stephen Smith Cody, Eric Stover, Mychelle Balthazard & K. Alexa Koenig, The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court, UC Berkeley HRC, 12 (2015), available online, archived. ↩
22.
Id. at 14. ↩
23.
Id. at 52. ↩
24.
Id. ↩
25.
Id. at 64. ↩
26.
Id. at 35. ↩
27.
Id. ↩
28.
Id. at 71. ↩
29.
Id. ↩
30.
Id. at 68. ↩
31.
Phuong Pham, Patrick Vinck, Eric Stover, Andrew Moss, Marieke Wierda & Richard Bailey, UC Berkeley HRC et al., When the War Ends: A Population-Based Survey on Attitudes about Peace, Justice, and Social Reconstruction in Northern Uganda (Dec. 2007), available online. ↩
32.
Id. at 3. ↩
33.
Id. ↩
34.
Id. ↩
35.
Id. ↩
36.
Blumenson, supra note 8, at 803. ↩
37.
See Drumbl, supra note 19, at 577. ↩
38.
Id. ↩
39.
Id. ↩
40.
Id. ↩
41.
Id. ↩
42.
Thabo Mbeki & Mahmood Mamdani, Courts Can’t End Civil Wars, N.Y. Times, Feb. 5, 2014, available online.

(“Central to the kind of justice dispensed at Nuremberg was the widely shared assumption that there would be no need for winners and losers (or perpetrators and victims) to live together in the aftermath of victory.”). ↩
43.
Garkawe, supra note 5. For a comprehensive analysis of the Nuremberg Trials and the ways in which early international tribunals differed from more modern courts like the ICC, see Ann Tusa & John Tusa, The Nuremberg Trial (Skyhorse 2010), excerpts. ↩
44.
See also Winston P. Nagan & Aitza M. Haddad, The Holocaust and Mass Atrocity: The Continuing Challenge for Decision, 21 Mich. St. Int’l L. Rev. 337 (2013), available online. ↩
45.
Garkawe, supra note 5, at 348–50. ↩
46.
Id. ↩
47.
Id. ↩
48.
Id. ↩
49.
Marko Attila Hoare, Genocide in Bosnia and the Failure of International Justice, Kingston University, Working Paper Series No. 8 (Apr. 2008), available online.

(At least one author has posited that this perception of bias or unfairness may be another result of lack of victim participation in the criminal trials. If this posited correlation is true, this is another reason for the ICC to involve victims more actively in the court’s proceedings. Failure to include serious considerations of victim perspectives and motivations could compromise the court’s long-term legacy). ↩
50.
Mbeke & Mamdani, supra note 42. ↩
51.
See Julian Borger, Bosnia’s Bitter, Flawed Peace Deal, 20 Years On, The Guardian, Nov. 10, 2015, available online; Mbeke & Mamdani, supra note 42. ↩
52.
Alice Gatebuke, The Peace That Wasn’t: Rwanda 20 Years After the Genocide, Huff. Post, Apr. 21, 2014, available online. ↩
53.
See generally Martha Minow, Forgiveness, Law, and Justice, 103 Cal. L. Rev. 1615 (2015), available online. ↩
54.
Understanding the WTO: Settling Disputes, WTO, available online (last visited Dec. 16, 2016). ↩
55.
Id. ↩
56.
Id. ↩
57.
Id. ↩
58.
Id. ↩
59.
Id. ↩
60.
Id. ↩
61.
See Machteld Boot-Matthijssen, The International Criminal Court and International Peace and Security, 11 Int’l Crim. L. Rev. 517 (Jan. 2003), ResearchGate paywall. ↩
62.
See Pham et al., supra note 31, at 3. ↩
63.
Minow, supra note 53, at 1631. See also Courtney Hillebrecht, The Deterrent Effects of the International Criminal Court: Evidence from Libya, 42:4 Int’l Interactions (forthcoming May 5, 2016), available online, archived. ↩
64.
See Wickwire, supra note 1; ICC to Investigate Burundi Political Violence, supra note 1; Russia Pulls Out From International Criminal Court, supra note 3. ↩
65.
See Jeremy Sarkin, Enhancing the Legitimacy, Status, and Role of the International Criminal Court Globally by Using Transitional Justice and Restorative Justice Strategies, 6 IJHRL 83 (Aug. 3, 2012), available online. ↩

kbanafshe
6316
August 4, 2017
9:53 am

Evaluating the Performance of the Court: To What Extent have the Actions of the ICC Transformed the Politics and Fostered Peace Within Central and Eastern Africa?

The International Criminal Court (“ICC” or “the Court”) was established in 1998 to “exercise its jurisdiction over the most serious crimes of international concern.”1 The main mandate of the court is to bring wrongdoers to justice, however over the years it has emerged as a key part of the international mechanism combatting impunity in Africa. This discussion seeks to evaluate the performance of the court in relation to whether it fostered peace and reconciliation within the region, and secondly, whether it transformed the political landscape in the countries in which it operated. This comment will analyse the activity of the court through a series of case studies. Each case study pertains to the specific performance of the ICC including any contributory factors, which built on, or hindered the peace process. The ICC’s activity has quintessentially presided within the African region, for this reason the selection of case studies came down to the cooperation of local government and support from the wider international community in achieving peace. Taking this into consideration, the chosen studies are: Uganda, the Central African Republic (CAR), The Democratic Republic of Congo (DRC), and Sudan. It is no secret that relations between the ICC and the African Union have become increasingly taut over the years; this is due to a multitude of reasons that will be discussed throughout this comment. There will be a wider discussion as to the crucial interplay of peace and justice, however the main focus will predominantly revolve around the courts performance and its ability to foster peace. The notion of peace and political stability vary remarkably around the world, which is why for the purpose of clarity, this argument will adopt the simplistic meaning of the word by tailoring it to each case study.

I. Case Study: Uganda

Uganda is one of five African states baring legislation that incorporates “the provisions of the court’s Rome Statute into domestic law.”2 In an unprecedented turn of events and after almost two decades of conflict between Ugandan government forces and the Lord’s Resistance Army (LRA), President Yoweri Museveni referred numerous counts of suffering and human rights violations to the ICC. This was the first time a head of state had referred a conflict to the court, which needless to say, produced a wave of political and international consequences. The President’s request for intervention was met with the untimely negotiations (Juba talks) taking place between the government and the LRA, which seemingly complicated the peace process even more. As always, the court was forced to confront the challenges “inherent in pursuing peace and justice simultaneously.”3 This case study will demonstrate that there is less of a trade-off between the two, and instead, a complementary relationship incited by the court. For instance, Otim and Wierda4 suggest that in aiming to end Uganda’s 20-year conflict, the Juba talks focused primarily on “negotiations over reconciliation and accountability.”5 This meant that it was important for the agreement to not only be suitable for both the rebels and the government but also be consistent with the provisions of the Rome Statute. As proponents of the court Otim and Wierda argue that the court broke new ground in “bridging local pressures and global legal obligations”6 and was not a hurdle to peace, but instead a catalyst to the rigorous treatment of accountability issues witnessed at Juba. Conversely some critics have asserted that the ICC’s intervention undermined the indigenous justice initiatives formerly used to integrate rebels into society.7

The courts performance, and impact in Uganda can more thoroughly be evaluated in 2005, when it issued arrest warrants for Joseph Kony and the rest of the LRA leadership. The warrants resulted in the Juba peace talks coming to a sudden halt amid criticism that the warrants were a “hurdle to the resolution of a devastating conflict.”8 With peace and political stability being at the forefront of this comment’s analysis, it is important to note that fierce debate surrounded the court, and it’s impact on addressing impunity for crimes in the region. The Juba peace talks were a monumental step in ending a conflict that had ravaged Uganda for over two decades. This meant that any actions the court took came at a cost for the government, the LRA and the ICC’s own success.

Academics have postulated that Uganda should have been an easy first case for the ICC; this is due to the nature of LRA’s movement and the government steadfast cooperation. Nevertheless, the courts intervention created a wave of controversy, although the court had established a close working relationship with the government, it was accused of undermining the wider perceptions of impartiality. Otim and Wierda have argued that the court represented a “western form of retributive justice”9 which was deemed culturally inappropriate to the Ugandans. This was due to their preference of traditional approaches of forgiveness and reconciliation, as opposed to a formal trial. Several delegations in higher Ugandan communities prevailed to the ICC to retract and reconsider its arrest warrants, as they believed amnesty took precedent and it was frankly unclear as to how far down the LRA’s chain of command the court was even willing to go.10

One thing that is certainly clear from this situation is that the arrest warrants in 2005 played a prominent role in bringing all parties to the negotiating table. At a time of perpetual turmoil, the ICC was able to bring increased political stability and hopes of peace for the people in Northern Uganda. This was evidenced by the formal agreement signed in 2007 known as Agenda Item 3.11 This agreement set the premise for accountability and reconciliation mechanisms and outlined that “formal criminal and civil justice measures will be applied to any individual who is alleged to have committed serious crimes or human rights violations in the course of the conflict.”12 Bell correctly argues that the mere threat of the ICC “can be used to toughen up the restorative justice mechanism at the domestic level”13—an interpretation that can very clearly be applied to the situation in Uganda. It was clear at times that the court’s presence was perhaps of detriment to the political landscape. This was due to the prominent traditional justice debate, and again in 2006, when ICC Prosecutor Luis Moreno Ocampo was described as a “spoiler”14 to the peace process. This came after an internal policy statement released by the ICC, which claimed that the interests of justice were not synonymous to that of peace.

Although the desirability of the ICC is sometimes questioned there is no doubt that as long as the intervention remains impartial the court is likely to have a potentially beneficial impact. The five arrest warrants against the LRA denounced atrocities to a certain extent, however Louise Parrot argues that in order to have an even greater impact “adequate safeguards should be put in place.”15 This would guarantee that proper checks and balances are in place in order to continue investigations and prosecutions, especially in highly politicized areas such as Uganda.16 The courts main peril to success in Uganda was arguably it’s sole focus on the LRA, and it’s neglect for the government forces. Prosecutor Ocampo justified this selection on the basis of the gravity and long-lasting nature of their crimes.17 This caused a degree of political turmoil in the country with rebel leaders refusing to comply adequately in the peace negotiations, and as one politician put it, “the ICC has become Museveni’s political tool.”18 This case clearly demonstrated that justice in Uganda came at a price, or rather, the ICC’s way of justice was simply unacceptable to most. Parrot concludes that the court is facing trying times and it should therefore “do all that it can to ensure that the pursuit of justice does not come at the price of peace.”19

Although the success of Juba is still fairly ambiguous, it is nonetheless acceptable to conclude that the Court played a significant role in raising discussions on accountability, which ultimately brought the two parties together. That being said, it is premature to assume that the court is solely responsible for this feat, as other influencing factors such as the reconciliation agreement and later the death of LRA deputy Vincent Otti were nonetheless fundamental to Juba’s success.

II. Case Study: The Central African Republic (CAR)

Coordinator of the NGO Coalition for the ICC suggested that the court “will save millions of humans from suffering unspeakably horrible and inhumane death in the coming decades.”20 With such an exceptionally high standard it is perhaps foreseeable that the court would not always live up to it’s expectation, and on occasion, fall short. Nonetheless, the court is an unprecedented institution, which Glasius describes as having had “a social and political impact on the situations on which it focuses.”21 This case study will focus on the accuracy of this statement in regards to the ICC’s success in fostering peace and stability across the Central African Republic (CAR).

For decades governance within the CAR has been blighted with turmoil and personal power struggles at the very top. However in 2005 the government referred the situation to the ICC22 with hopes of ending the conflict and bringing peace to the victims—formal investigations took place approximately two years later in 2007. Between 2002 and 2003 rebel forces led by François Bozizé (the countries former army chief) precipitated a coup against then President, Ange-Félix Patassé. The struggle was characterized by the intimidation of civilians, war crimes and an abundant array of crimes against humanity. A fact-finding mission23 in the region reported Patassé carried out mass rape, whilst the rebels conducted mass killings and other grave forms of maltreatment. In a letter to the UN-Secretary General,24 the government insisted that the courts intervention was not needed given that the domestic justice system was capable of prosecuting for international crimes. Some scholars have argued that although the ICC’s involvement may have triggered the domestic process to address impunity, the truth commissions set up as amnesty, were instead a ploy to “avoid confronting criminal liability.”25 If this is in fact accurate, then it is clear the courts presence was merely seen as a hurdle to overcome, rather than a means to justice.

Criticism of the court began in 2005 when the prosecutor failed to act after a referral by the CAR government. This came just after the countries own Supreme Court concluded it was unable to conduct appropriate measures to apprehend and try the perpetrators because they resided outside of the country.26 However, investigations did begin in 2007 with a special emphasis on the sexual crimes that had taken place within the power struggle five years earlier. That being said, the delay between the events of 2002–2003, and the investigation, undeniably hindered the quality of evidence and demoralized the victims who relied patiently on the success of the court. The situation in the CAR was certainly a lot simpler for the court. This was perhaps due to the fact that the investigations weren’t met with nearly the same level of hostility experienced in Uganda.

The president of the association of evangelical churches mentioned in a statement that the court’s presence will be integrated into the country’s political life and that only the intellectuals will know of its importance.27 Most academics will argue this to be true, adding substance, he later argued that “physical and material security are the main priorities for Central Africans,”28 potentially leading way to a more peaceful nation. That being said, the director of Radio Centrafrique opposed this notion in stating that the court is unlikely to change anything29 with other critics voicing concerns that the trial is too slow to give victims any degree of satisfaction.30

By 2008 the court had successfully arrested Jean-Pierre Bemba Gombo, although his ties were mainly to the Democratic Republic of Congo he was one of the main leaders assisting President Patassé to carry out war crimes. Glasius argues that Bemba’s arrest was “cast in a different light.”31 Perhaps due to the fact that the new Central African president and former rebel leader, Bozizé had realized that the ICC could now also indict him and other prominent figures within his government. Arguably any further prosecutions at the time would have jeopardized the peace-negotiations that were underway, which led to criticisms that the court was of “one-sided justice.”32 Article 1 of the Rome Statute emphasizes that the court shall be “complementary to national criminal jurisdictions”33 thus only stepping in when needed. For this reason it is reasonable to understand the ICC cannot be expected to handle all lower level cases and that the bulk of impunity should perhaps be handled by the domestic courts.34 In this regard, the performance of the court should therefore not be condemned, as it surpasses the scope of responsibility set forth by the Rome Statute. Sara Darehshori reasons that the ICC placed pressure on national authorities to at least take nominal steps toward enforcing international humanitarian law.35

To conclude this case study it is imperative to look at whether the court did in fact foster peace and stabilize the political landscape in the CAR today. The country’s current interim President, Catherine Samba-Panza, thanked the world for its intervention and peacekeeping operations, and “appealed to the sanctions committee” by asking for looser sanctions in order to put the country back together.36 In her time in office Samba-Panza pledged to bring stability to the war-torn country, and in doing so referred to the court for all crimes committed during the upheaval. The ICC’s current chief prosecutor, Bensouda stated that “the list of atrocities is endless” and thus cannot be ignored. This goes to show that the Central Africans are still working towards becoming a more peaceful nation by bringing those responsible for gravest of international crimes to justice. With Samba-Panza welcoming the participation of the international justice system one more time, it is likely she has made the decision that the ICC’s investigation “will not harm the country’s eventual road to peace.”37 Her request for soldiers from the CAR to also play a role in stabilizing the country goes to show that the government at the time understood the importance of local efforts, as without it, there would be no lasting peace.38 While the CAR has not yielded any domestic prosecutions, the ICC has arguably raised awareness for the rule of law, which Darehshori postulates, is “the first step toward preventing future crimes.”39

III. Case Study: The Democratic Republic of Congo (DRC)

The courts impact in the Democratic Republic of Congo (DRC) will be assessed on the basis that it was one of the first countries where the ICC opened a formal investigation. This was a result of self-referral by the Congolese President, Joseph Kabila, who referred the situation to the court’s Chief Prosecutor in April 2004. The conflict in the DRC emerged with the “implosion of central government authority under decades of Mobutu’s corrupt rule and similarly autocratic and ineffective governments of his successors, Presidents Laurent and Joseph Kabila.”40 Although this crisis engulfed the nation and spanned two wars, the turning point came in 2003 when Prosecutor Ocampo described the conflict in the Congo as “the most urgent situation to be followed.”41 Numerous challenges arose in the early days of the investigation as newly formed armed groups were threatening the very peace process upon which the court had relied.42 The court focused its attention on the Ituri province as it regarded the atrocities committed there to be of the gravest nature. By focusing on Ituri, the court is addressing a part of the Congolese war that is still very much thriving with high-ranking members of the government involved to some capacity.43 For this reason, this case study will focus on the performance of the court in this specific region and analyse whether it was successful in fostering peace and stability in Ituri and elsewhere in the Congo.

Arguably Kabila was initially reluctant to refer the situation to the court due to concerns that it would affect the “fragile peace process,”44 which had become such a vital power sharing agreement amongst the rebels.45 Nonetheless, this was a reasonably valid concern with potentially dyer consequences for both the country and the court. Despite this apprehension, a researcher from Human Rights Watch suggested that “the ICC could turn out to be [an] extremely profitable currency” for Kabila as it can be used as a weapon against his adversaries.46 Clearly the courts involvement in the DRC, at this point, had more political implications than legal. Jacqueline Geis has argued that the ICC “was also under serious pressure from foreign donors to avoid creating political instability in the lead-up to the first post-independence elections.”47

The Court respectively issued arrest warrants for Thomas Lubanga, Germain Katanga and Mathieu Ngudjolo, who at the time of his indictment was an active-duty colonel in the national army. Arguably these indictments, especially for such high calibre individuals “sent a strong deterrent signal to the armed groups.”48 Clark postulates that the courts choice of these Ituri leaders raised questions about the validity of its politically cautioned approach.49 Arguably in doing so the court focused on its legal mandate, rather than the potential political effect it may have on the conflict. Compared to for instance, Uganda, the court was less effective in restoring justice in the DRC perhaps due to the context of the conflict as most Congolese criminals were not covered by the ICC’s jurisdiction.50 However, for individuals such as Thomas Lubanga, who was in its jurisdiction, the court was successful in finding him guilty of enlisting child soldiers, and ultimately sentenced him to 14 years imprisonment.51 Nevertheless this arrest did not stop the ongoing conflict, and crimes to this day, continue to be committed.

Had the court also demonstrated its ability to be more effective in the domestic criminal proceedings taking place, as much as it had for those in The Hague, it could perhaps have been more successful in fostering peace throughout the Congo. This would have allowed for it to no longer be seen as a vehicle to foreign interference, but instead, a vital institution for those who were denied justice by their own government. Kabala wa Kabala argues that “the configurations of the ICC mandate can set important international precedents in terms of fair and impartial trials”52 which in the long-term, can reverberate in domestic proceedings. Thus allowing the Court to “set high standards in the collective memory of Africans.”53 It would be unfair to argue that the court did not transform the political landscape in the Congo to a certain extent; the successful convictions of Lubanga and Katanga54 paved the way for a more united nation and a decrease in hostilities. Albeit the situation in the DRC is far from perfect, the court did play a vital role in the affected communities and therefore its performance in this regard must be commended. Whichever direction the ICC takes in the Congo now depends on its ability to rise from criticism, and balance expectations and reality in order to sustain peace and political tensions.

In order to achieve sustainable peace and rebuild a divided nation, it is crucial for victims to speak out, and for the affected areas to be vocal about the devastation they faced. This argument will focus on the importance of transitional justice in the DRC; arguably, it is one of the only ways the court can help restore peace. Borello concurs that this approach establishes trust between the citizens and the state.55 De Greiff agrees in that transitional justice pursues the goal of recognizing victims for what they truly are, bearers of rights.56 The guiding question here remains; can the court adopt such transitional strategies in its intervention in order to sustain peace in the long term?

Academics have criticized the courts performance in the Congo contending that it was “fundamentally motivated by self-interested pragmatic concerns.”57 Perhaps by diverting it’s eye from sitting members of the government, who themselves, were also implicated in carrying out grave and inhumane crimes—the court overlooked the role of domestic jurisdictions to address the atrocities concerned. Furthermore Clark reasons that court needs more support before it selects it’s cases so pragmatically, otherwise it will never be perceived as a crucial global actor in the fight against impunity and conflict.58 It is clear that the court faced unavoidable challenges in delivering international peace and justice to the Congolese people. The courts performance especially in regard to it’s chosen prosecutions drew too much political contention and thus arguably failed in its aim to foster peace within the nation.

IV. Case Study: Sudan

The Courts activity in Sudan is arguably one of its more significant cases, because it risked unsettling the already unhinged balance of peace, security and justice within the nation. Unlike previous ICC interventions in Africa, the UN Security Council (UNSC) referred the situation in Sudan to the court under Resolution 1593.59 The referral was based on findings from the UN International Commission of Inquiry into Darfur in 2005, which found that crimes committed by the government amounted to “violations of international human rights and humanitarian law.”60 The inquiry also concluded that some of the crimes were “very likely to amount to war crimes…and crimes against humanity.”61 Following this investigation the court issued arrest warrants for Ali Kushayb and Ahmad Haroun; key leaders involved in the conflict. The Sudanese government was successful in arresting the former on war crimes and pledged to prosecute him domestically.62 However Sudan’s cooperation with the court came to a sudden halt in 2009, when they purported that the domestic judiciary was more than capable of prosecuting crimes committed in Darfur. To a certain extent the Sudanese government followed through with their word by creating a commission of inquiry to address impunity within the country. For instance, in 2005, the government announced the creation of a Special Criminal Court on Events in Darfur in addition to appointing a prosecutor general to re-examine crucial cases. A report in the “African Union Series” titled Peace, Justice and Reconciliation in Africa questioned the credibility of these national initiatives63 arguing that the judiciary is of “limited independence which has impeded the prosecution of those responsible for serious crimes.”64

The most controversial element of the Darfur case revolved around the indictment of Sudan’s President Omar al-Bashir. Respectively in 2008 and 2009, the Courts Chief Prosecutor and later Pre-Trial Chamber issued arrest warrants for the countries sitting head of state. Critics of the court have argued that this arrest warrant challenged the conflicting goals of peace and justice, questioning whether “justice should be pursued at all costs”65 in the region. Although taking action was both in the jurisdiction and mandate of the court, it nonetheless risked unsettling the fragility of peace and security within Sudan. For this reason, academics have argued that the court should have “delayed the arrest warrant until a later date” rather than further exacerbating the heightened level of insecurity in Darfur. One pitfall of the ICC is that its prospects of arresting and transferring wanted war criminals to The Hague is far-fetched, with al-Bashir being no different to the rest. This indictment sparked debate amongst scholars as to the importance of peace and justice working together. In 2005 the ICC declared that any hope for sustainable peace in Darfur requires justice, which in turn, urged the African Union (AU) to act against violations of human rights. This was a great step in the right direction as smaller panels were set up across the country, both by the UN and the AU in order to tackle violations that fell outside the jurisdiction of the court.

By 2008, the ICC had pursued its fourth case in Sudan, but had yet to “foster peace” or adequately bring the perpetuators to justice. A plethora of arguments exist regarding the courts ineffectiveness in this regard, however it is important to shed light on the considerable benefits the courts performance has provided. For instance, Payam Akhavan, a former legal advisor to the ICTY concurred that stigmatizing criminal conduct can ultimately lead to “post-conflict reconstruction” by placing an emphasis on the importance of international order.66 Akhavan follows up on this point by suggesting that the stigma created by the court can bring peace in three ways: firstly, it discourages victims from seeking vengeance, it reduces the culture of impunity and finally, it marginalizes the corrupt and criminal political leaders.67 However, if this is the criterion for peace, then the court has arguably failed in a number of its cases to this date.

Nicki Alam argues that it is perhaps somewhat premature to assess the courts ability to foster peace based on Akhavan’s “precursors.”68 However she suggests that the courts performance, thus far, is a significant indicator for any prospect of peace in Darfur. She reasons that the court has not yet reduced the culture of impunity, as it has not formally arrested any of the individuals indicted. She additionally promulgates that if the ICC were to act in conjunction with the UNSC it could combine its efforts and allow a UN peacekeeping force into the region.69 This interpretation concludes that justice for the crimes in Sudan and the successful arrest of al-Bashir and other militia leaders would undoubtedly set the stage for peace in Darfur. Conversely, Tranovich believes that is possible “the ICC investigation brought more violence to the conflict”70—Reeves corroborates this view by arguing that the courts intervention “made the regime more aggressive.”71 Perhaps building criminal cases in the midst of an on-going conflict further exacerbates the situation and as Tranovich contends:

[T]here is inherent conflict in trying to deliver justice in an area without peace; prioritizing either peace or justice poses political choices no one wants to make. The stakes for the new court are high.72

Evaluating the courts performance based on whether it did or did not foster peace is certainly unnerving, fostering peace is not the main aim of this institution, nor was it ever intended to operate in isolation. The international community is beginning to get restless in regards to the Darfur conflict, however the court cannot fulfil its mandate entirely without potentially risking the lives of the victims. Coordinator for the Darfur Consortium postulated that the ICC has huge potential, however a group of lawyers cannot negotiate an extraordinarily complicated situation without further international support.73

The analysis of this comment has orbited around the notion of peace, whether the Court as a single body can foster peace and whether it ultimately catalyses the ability to serve justice where it need be. Okuk contents that patriotic Sudanese do not support any action they may lead to “undemocratic regime change” in their country74—this view makes it fervently clear that al-Bashir’s arrest would do more harm than good to the countries political stability and hope for peace. Okuk concludes his argument as a critic of the court by stating that “justice can wait because peace is a priority to it.”75 Perhaps for many Sudanese, this interpretation is apt and demonstrates the very need for peace over justice. If the courts intervention deterred grave and inhumane crimes even by a small margin, then that to some, is arguably more valuable then removing the head of state and creating more political turmoil in the long run. Ultimately the emergence of the court as the epitome of international legal order is strongly up for debate, however its performance in Sudan has been hindered by the non-compliance of state parties such as Chad, Kenya and other AU countries that had received al-Bashir. The peace versus justice debate has arguably been the most prominent within the Sudanese context and for that reason the courts performance is slightly stricter to evaluate. From the five cases in Sudan, all suspects remain at large; the court has been unsuccessful in formally trying any of these individuals and therefore has failed to foster peace and stability, especially in the Darfur region.

Discussion and Conclusion

In understanding the courts effect on peace within the region it is imperative to take into account the peace versus justice debate. Arguably this was one of the key factors influencing the courts performance within each of the four African states. For instance, the courts interference in Uganda posed a critical threat to the success of the peace negotiations, however this was not the case in the CAR. Perhaps due to the fluid nature of the hostilities, or rather that reconciliation was merely not a priority to the people of Central Africa. In an interview with Sayo Nzale, Glasius interestingly sheds light on the courts role in fostering peace:

The prosecutor can stop the inquiry when he realizes there is peace…[The Prosecutors role] Above all it’s to restore peace, to consolidate peace…Well, we encourage that but at the national level we think about the justice aspect because there is no real peace without justice.76

Certainly in the context of the ICC this is not an unprecedented view, however Sayo’s account is no doubt interesting as it congregates the role of the prosecutor solely around the notion of peace. When evaluating the ICC’s performance it became strikingly clear that every activity of the court is a fundamental fragment needed to achieve peace. For example while the physical distance of The Hague and isolation of the victims is usually a moot point for critics, the long-winded process of finalizing a case is also a significant drawback to peace. As evidenced by the “glacial pace”77 at which the court preceded in the CAR, given that almost four years had elapsed between the commission of the crimes and the initial investigation. Can fostering peace within African nations be construed as merely raising awareness for perpetrated crimes within the region? If so, then it can be argued that the court did in fact “foster peace” as arrest warrants in Uganda and the DRC brought the government and concerned parties to the negotiating table. With small signs of deterrence, and an increased knowledge of the rule of law a significant fall in mass crime was witnessed in both Uganda and the CAR. Similarly in Sudan, the Inquiry Commissions, although unsuccessful, was perhaps a small stepping-stone on the road to eventual peace.

This comment has shown that there is no easy way to “foster peace” in any country, in particular one that is ravaged by war and conflict. Perhaps one reason the ICC failed in Uganda and Sudan is due to the fact that its prosecutions impeded on an already strenuous peace process. Parrott argues that for a state in transition “compromise is likely to be essential and the granting of amnesty may, in some situations, be indispensable”78 if peace is to be achieved. This notion of compromise goes against the very essence of the court and the mandate upon which it was built. Ending impunity in the region can’t be done overnight; however the court has arguably been a great canon of deterrence, particularly in the Ugandan context. The court possibly failed the most within Sudan, peace and security did not improve and all suspects remain at large. However as the case study demonstrated, peace may be a far-off concept until justice is aptly served, and because of this the court was doomed for failure before it began its inquiry. I would argue that the ICC had the most success in the Central African Republic, namely due to the transitional government that avidly aimed to restore peace and bring perpetrators of the gravest humanitarian crimes to justice. This example goes to show that government cooperation, similar to that in Uganda goes a long way in aiding the courts effectiveness. Finally the ICC’s performance in the DRC was restricted by the growing political contention following its investigation, however the successful prosecution of Lubanga and Katanga arguably went a log way in uniting the Congolese people and fostering peace. In conclusion, the court is facing trying times and the confidence of those who rely so profoundly on its abilities is slowly being thwarted. The pursuit of peace and justice certainly come at a price, however neither is inevitable and the court undoubtedly needs the support of international actors and local government if it is to ever successfully foster peace.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 1, available online. ↩
2.
African Union Panel of the Wise, Peace, Justice, and Reconciliation in Africa: Opportunities and Challenges in the Fight Against Impunity 47 (International Peace Institute, Feb. 2013), [hereinafter Fight Against Impunity], available online. ↩
3.
Nick Grono & Adam O’Brien, Justice in Conflict? The ICC and Peace Processes in Courting Conflict? Justice, Peace and the ICC in Africa 13 (Nicholas Waddell & Phil Clark eds., 2008) [hereinafter Courting Conflict?], available online. ↩
4.
Michael Otim & Marieke Wierda, Justice at Juba: International Obligations and Local Demands in Northern Uganda, in Courting Conflict?, supra note 3, at 21–27. ↩
5.
Nicholas Waddell & Phil Clark, Introduction, in Courting Conflict?, supra note 3, at 7. ↩
6.
Id. ↩
7.
Fight Against Impunity, supra note 2, at 48. ↩
8.
Otim & Wierda, supra note 4, at 21. ↩
9.
Id. at 22. ↩
10.
Lucy Hovil & Joanna R. Quinn, Peace First, Justice Later: Traditional Justice in Northern Uganda, The Refugee Law Project Working Paper No. 17 at 4 (Jul. 2005). ↩
11.
Agreement on Accountability and Reconciliation Between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement, Jun. 29, 2007, UCDP, available online. ↩
12.
Id. § 4.1. ↩
13.
Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria 252 (OUP 2008). ↩
14.
Otim & Wierda, supra note 4, at 23. ↩
15.
Louise Parrott, The Role of the International Criminal Court in Uganda: Ensuring that the Pursuit of Justice does not come at the Price of Peace, 1 Austl. J. Peace Stud. 8, 28 (2006), available online. ↩
16.
Id. ↩
17.
Luis Moreno-Ocampo, Speech at the London School of Economics: The Lord’s Resistance Army: War, Peace and Reconciliation (Mar. 3, 2007). ↩
18.
Courting Conflict?, supra note 3, at 49.

(Interview by Phil Clark of un-named Ugandan Member of Parliament, Kampala, Mar. 2, 2006). ↩
19.
Parrott, supra note 15, at 29. ↩
20.
William R. Pace, Statement of World Federalist Movement on behalf of the Coalition for an International Criminal Court (Jul. 17, 1998). ↩
21.
Marlies Glasius, “We Ourselves, We are Part of the Functioning”: The ICC, Victims, and Civil Society in the Central African Republic, 108 Afr. Aff. 49, 50 (2009), Oxford Academic paywall, SSRN paywall. ↩
22.
Press Release, ICC, Prosecutor Receives Referral Concerning Central African Republic (Jan. 7, 2005), available online, archived. ↩
23.
International Federation for Human Rights, Forgotten, Stigmatised: The Double Suffering of Victims of International Crimes (FIDH, Feb. 1, 2007), available online. ↩
24.
Fight Against Impunity, supra note 2, at 53. ↩
25.
Id. at 54. ↩
26.
Press Release, FIDH, The Cour de Cassation Confirms the Incapacity of the National Justice System to Investigate and Prosecute Serious Crimes (Apr. 13, 2006), available online. ↩
27.
Glasius, supra note 21.

Interview with Pasteur Franco Mbaye-Bondoi, secretary-general of the Evangelical Alliance, Bangui (Sep. 18, 2007). ↩
28.
Id. ↩
29.
Glasius, supra note 21.

Interview with Christian Aimé Ndota, director, Radio Centrafrique, Bangui (Sep. 18, 2007). ↩
30.
Glasius, supra note 21.

Interview with Simon Pierre Ndouba Beret, Director, Agence Presse Centrafricain, Bangui (Sep. 19, 2007). ↩
31.
Glasius, supra note 21, at 56. ↩
32.
Id. ↩
33.
Rome Statute, supra note 1, Art. 1. ↩
34.
Human Rights Watch, Making Justice Work: Restoration of the Legal System in Ituri, DRC (HRW, Sep. 1, 2004), available online. ↩
35.
Sara Darehshori & Elizabeth Evenson, Peace, Justice and the International Criminal Court, in Debating International Justice in Africa 35 (2010). ↩
36.
C. Africa President Calls For Lifting UN Arms Embargo, AFP, Sep. 27, 2014, available online. ↩
37.
Id. ↩
38.
Id. ↩
39.
Darehshori & Evenson, supra note 35, at 3. ↩
40.
Suliman Baldo, The Impact of the ICC in the Sudan and DR Congo, ICTJ, 4 (Jun. 2007), available online. ↩
41.
Press Release, ICC OTP, Communications Received by the Office of the Prosecutor of the ICC (Jul. 16, 2003), available online. ↩
42.
Pascal Kambale & Anna Rotman, The International Criminal Court and Congo, Global Pol’y F. (Oct. 2004), available online. ↩
43.
Id. ↩
44.
Jacqueline Geis & Alex Mundt, When To Indict? The Impact of Timing of International Criminal Indictments on Peace Processes and Humanitarian Action, Brookings Institution, 8 (Feb. 2009), available online. ↩
45.
Id. ↩
46.
Thierry Cruvellier, ICC Joins the Congolese Chess Game, Int’l Just. Tribune, Jul. 5, 2004, paywall. ↩
47.
Geis & Mundt, supra note 44, at 9. ↩
48.
Id. ↩
49.
Phil Clark, Law, Politics and Pragmatism: The ICC and Case Selection in the Democratic Republic of Congo and Uganda, in Courting Conflict?, supra note 3, at 50. ↩
50.
Shirambere Philippe Tunamsifu, Transitional Justice and Peacebuilding in the Democratic Republic of the Congo, ACCORD (Mar. 9, 2015), available online. ↩
51.
International Criminal Court, Case Information Sheet: The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06 (Oct. 2016,) available online (last visited Jul. 18, 2017). ↩
52.
Olivier Kambala wa Kambala, International Criminal Court in Africa: “alea jacta est”, Afr. Arguments (Jul. 13, 2010), available online. ↩
53.
Id. ↩
54.
International Criminal Court, Case Information Sheet: The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07 (Mar. 27, 2017), available online (last visited Jul. 15, 2017). ↩
55.
Federico Borello, A First Few Steps: The Long Road to a Just Peace in the Democratic Republic of the Congo, ICTJ, 13 (2004), available online. ↩
56.
Pablo de Greiff, A Normative Conception of Transitional Justice, 50 Politorbis 17, 22 (2010), available online ↩
57.
Clark, supra note 49, at 44. ↩
58.
Id. ↩
59.
S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005), available online, archived. ↩
60.
Report of the International Commission of Inquiry on Darfur to the UN Secretary-General (Jan. 25, 2005), available online. ↩
61.
Id. ↩
62.
Kushayb was neither tried domestically nor transferred to the ICC. ↩
63.
Fight Against Impunity, supra note 2, at 55. ↩
64.
Id. at 37. ↩
65.
Id. at 56. ↩
66.
Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7 (Jan. 2001), JSTOR paywall. ↩
67.
Nicki Alam, Can the ICC Bring Peace to Sudan? Afr. Arguments (Jul. 3, 2008), available online. ↩
68.
Id. ↩
69.
Id. ↩
70.
Anja Tranovich, Seeking Justice where there is no Peace, The Nation (May 24, 2006), available online. ↩
71.
Sudan: Research, Analysis and Advocacy by Eric Reeves, available online. ↩
72.
Tranovich, supra note 70. ↩
73.
Id. ↩
74.
James Okuk, ICC Justice is Useless if it Destroys Peace, Sudan Tribune, Jul. 18, 2008, available online. ↩
75.
Id. ↩
76.
Glasius, supra note 21.

Interview with Bernadette Sayo Nzale, President of OCODEFAD, Bangui (Sep. 14, 2007). ↩
77.
Glasius, supra note 21, at 59. ↩
78.
Parrott, supra note 15, at 23 ↩

Sebastian Barrios Poulsen
6333
August 9, 2017
9:20 am

Evaluating the performance of the ICC: the value of and challenges associated with measuring the expeditiousness of ICC’s proceedings

I. Introduction

One of the most persistent and often repeated criticisms of all international criminal tribunals has been that they cost too much money and take too long.1 After having been in operation for more than ten years, the International Criminal Court (“ ICC”) is no exception: it is continuously being criticized for its very lengthy and expensive trials.2

The duration and speed of legal proceedings in court cases have for a long time been seen as an indicator of a court’s efficiency and effectiveness. If there is one thing that is easy to measure and communicate it is time spent.

This focus on expeditiousness applies to governments and stakeholders in the various national jurisdictions around the world,3 i.e. on a “local” level. It also applies to policymakers on the regional level, for example the European Union, where there has been an increased focus on performance indicators of courts, not least the expeditiousness of court proceedings4 and the obligations under the European Convention on Human Rights. On that background it is neither an exception nor a novelty that the ICC and stakeholders focus on expeditiousness as a performance indicator for the ICC (though the unique character and nature of the ICC makes the methodologies used by national legal systems and the success criteria difficult to apply directly to the ICC). In a recent report5 from 2015 published by the ICC expeditiousness is explicitly highlighted as a central performance indicator:

…the Court identified the following four key goals as critical for assessing the performance of the ICC as a whole: (a) The Court’s proceedings are expeditious, fair and transparent at every stage.

Furthermore, the Rome Statute,6 which has been agreed by the Signatory States and which embodies the legal framework for the functioning of the ICC, contains explicit obligations regarding expeditiousness. Article 64 reads: “The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witness.” Article 67 reads (under the heading “Rights of the accused”) that the accused has the right to “be tried without undue delay.”

While it is difficult to disagree with the ICC’s own, relevant stakeholders’ and the international community’s focus on and interest in the expeditiousness of ICC cases as such, many difficult derived questions and potential problems arise when it comes to having time spent as a performance indicator.7 While easy to measure, time spent by the ICC and duration of trials have to be seen in the very complex context in which the ICC functions. If this is not done, the outcomes of the measuring of time will not show a true and fair picture of how the ICC actually functions.

One problem as regards “time spent” and expeditiousness relates to adequately taking into account potential structural challenges affecting efficiency and effectiveness of the ICC. Such challenges may only be handled by textual amendments of the Rome Statute and are thus (currently) out of the ICC’s control and influence.

Another challenge is that States play a major role in ensuring the efficiency and effectiveness of the ICC, hence making the expeditiousness of ICC trials something, which is highly influenced by something the ICC itself cannot control. Accordingly, given the multi-faceted characteristics of the ICC—a judicial institution depending on States to enforce its orders and operating in a multi-cultural and highly political context—lack of expeditiousness in the ICC’s operations cannot only be ascribed to the ICC’s judicial procedures, planning, allocation of resources and/or and strategies. Any assessment of whether the ICC is sufficiently expeditious in its adjudication would be incomplete if not taking into consideration the important role played by States through cooperation with assisting the Court to fulfil its mandate.8

In situations where there is non-cooperation, insufficient or lack of timely cooperation by States when it comes to, inter alia, the enforcement of arrest warrants, or respond to requests by the ICC for judicial assistance, this significantly impedes the ICC’s possibilities of handling the trials in an expeditious manner, which is damaging to the ICC’s integrity and its potential to stem impunity. Thus, the ICC’s dependency on States corporation need to be accounted for when assessing expeditiousness.

II. Scope of Thesis

The scope of this thesis is to assess and discuss the following: Is it at all relevant to measure the duration of trials pending before the ICC. In the affirmative, how can it adequately be handled that the ICC has not completed a high number of cases serving as benchmarks for measuring expeditiousness? How does measuring expeditiousness take the complexity and comprehensiveness of ICC cases into account? How are resources and the legal framework for the ICC taken into account when using expeditiousness of ICC trials as a performance indicator?

III. Speed of the ICC’s Court Proceedings as a Relevant Performance Indicator?

Many reasons have been highlighted over the years justifying the focus on the duration of cases before the ICC.9 To highlight some of the most common points justifying a strict focus on time spent, there is the deference to:

The accused who—especially in the event where the accused turns out to be innocent in some or all of the charges—has a fundamental right to have his/her legal position clarified as quickly as possible.
The direct victims and—in the event the victims are deceased—dependents who should be granted relief and justice as soon as possible without any unnecessary delay in this respect.
The actual outcome of the case, which can be influenced by excessive time spent on the case because the investigative work, access to witnesses etc. is inevitably impeded the longer the case goes on.
There are financial implications associated with protracted court cases because more time spent by judges, ICC staff, lawyers etc. equals an increase in resources allocated to that particular case.
Finally, lengthy court cases will create a knock-on effect on new, incoming cases, which will be delayed and delay new cases, hence creating a vicious circle of protracted cases.

All of the above factors speak in favor of the ICC’s focus on expeditiousness and time spent as a performance indicator. There is, however, also justified critique of focusing (too much) on time and expeditiousness. Legal scholars, judges and stakeholders have opposed against quickness and hours spent being a main area of attention when it comes to indicators serving a criterion for a courts performance.10

One of the main critics, which is presented by the judiciary and international criminal law experts, is that expeditiousness will inevitably create a focus on the “productivity” of judges and the court as if the job of a judge and the function of the court was similar to a factory producing material goods. The more expeditious the factory workers (judges and staff), and the management of the factory is, the more productive can the factory be, more goods be produced and an increased “productivity” is considered to be good, whereas a decline or stagnation in productivity is found to be bad and an indicator of something not functioning well.11 Hence, in the critics’ view, the judicial and legal quality is “under-estimated” and under-valued primarily because time, conviction rates, duration of the different stages of the court proceedings etc. are easier to measure than abstract concepts such as quality and fairness. In the critics view the before mentioned factors should be the overarching performance indicator for the any court regardless of the difficulties measuring such factors. I tend to agree with these points of view as there is inevitably an inextricable paradox associated with solving cases very expeditiously, but at the same time very thoroughly. I do, however, also fully appreciate that there is no direct correlation between expeditiousness and fairness/quality, i.e. a trial is not necessarily more fair or has been subject to more thorough scrutiny just because to trial lasted for a long time.

The above should not be construed as if there should not be a focus on the time spent on ICC cases, but this cannot be done at the expense of the fairness and quality of the ICC as this would otherwise undermine the integrity of the ICC.

In conclusion, there is no doubt that there are many and weighty reasons to focus on expeditiousness of the ICC as a performance indicator. However, there are also several challenges connected with focusing on time spent as several factors—outside the control of the ICC—can affect the expeditiousness of the ICC. It is my position that such other factors need to be taken into account when measuring the ICC’s expeditiousness of lack thereof.

In order to assess whether ICC trials are sufficiently expeditious, it is necessary with some sort of objective yardstick for the purpose of measuring. However, it is scarcely possible to identify such objective and measurable yardstick, because every ICC trial is unique and different (as opposed to trials pending before national courts), and therefore must be assessed separately on its own, individual merits. Hence, where 6 years could appear to be acceptable in ICC case A, 3 years could be considered unduly lengthy in ICC case B. Consequently, it poses a challenge to agree on a generally applicable yardstick for highly unique trials.

With few exceptions there is general consensus about that ICC trials must be expected to take longer than trials pending before national courts. It is a matter of fact that international crimes covered by the Rome Statute most often involve atrocities, which have been committed on a massive scale and over long periods of time. It goes without saying that such cases are far more comprehensive and complicated than most national cases.

Not only the legal assessment in these type of cases is time consuming. Also all the necessary work with countless witnesses—often from countries far away from the Hague—who need to be interpreted and heard, takes time. Substantial amounts of documentary evidence will have to be translated and assessed, and the complexity and workload is even bigger when more than one conflict is to be addressed and adjudicated at the same time.12 So to put it short: ICC trials will always have a nature and character, which will challenge the patience of the implicated parties, States Parties, stakeholders etc.

The above described complex nature of ICC cases entails that a yardstick for expeditiousness, which might be considered appropriate in the context of national courts and national trials, is of limited relevance and/or applicability for the ICC.

However, this does not change the fact that tools and procedures for measurement of expeditiousness should be established to a higher degree than currently. It is for the ICC, the States Parties and relevant stakeholders to frame tools for measurement of expeditiousness to the highest possible extent, while at the same time not conflict or prejudice other seminal principles and interests enshrined in the Rome Statute.

IV. How to Establish Appropriate Benchmarks for ICC Trial Proceedings?

In order to measure the expeditiousness of cases the ICC has declared to establish an expected duration for the stages of each new case against which actual performance can be measured. The expected duration for the stages should provide working assumptions for the likely overall duration per case. The expected durations can serve as a benchmark against which to assess the actual progress of a case, i.e. serve as a performance indicator.13

While I view such initiative as being both relevant and useful, it also poses serious challenges. For the time being the ICC has not yet specified how these benchmarks will be established, i.e. what the estimated length of each step of the trial proceedings should be, or how such estimated length should be determined.

I note, however, that the ICC itself stress that benchmarks should be made in a manner where the specific features and challenges of each case can be taken into account. While national courts have a substantial amount of cases and previous experience to draw on when establishing estimated lengths of trials proceedings, the ICC is not advantaged in the same way.14 This makes the actual drawing up of benchmarks difficult as benchmarks for the future is often based on experience from the past.

The ICC has finalized a very limited number of cases and all the cases have had their own unique features. Hence, it will be very challenging—and not recommendable—if the ICC was to use previous cases as the sole basis for setting out estimated durations of each step of the ICC trials in general.

I consider it viable if the ICC would seek inspiration and draw on experience from other international criminal tribunals when deciding its estimations for the steps in the trials. Furthermore, the ICC should look to complicated national trials when estimating the duration of a “typical” ICC trial.

This could for example be done by looking at complex domestic murder and terror trials from around the world. Just to highlight a single example which could serve as inspiration is the prosecuting of Timothy McVeigh in the US.15 The case was very complex and costly and thus had some of the same characteristics as a ICC trial. The cost of investigating and prosecuting Timothy McVeigh for the Oklahoma City bombing has been estimated to be 82.5 million for a three-year period between 1995 and 1998. Furthermore, it is estimated that that the FBI had 2,592 agents investigating the case in 1995, which says something about the time and resources spent on the case.16

The above mentioned case from a (US) national court is just one example of a case where I consider it viable for the ICC to seek inspiration when setting out its estimated durations for ICC trials. More of such cases should be analyzed by the ICC prior to deciding an appropriate benchmark for the various steps of the trial proceedings. All such complex national trials would have had a comprehensive investigative phase, a large amount of evidence, and—presumably—many of the same features affecting the duration of the trial.

In that connection, I should highlight that the national cases do not necessarily have to be murder and terror cases. As long as the legal, factual and evidentiary issues are comprehensive and complex, then the case could serve as appropriate inspiration for the ICC benchmarks. This could, for example, be cases about complex financial crime, such as the case against former Enron CEO, Jeffrey K. Skilling, who was convicted of conspiracy, securities fraud, insider trading etc. in connection with the collapse of the Enron Corporation in 2001).17 Also this trial, similar to the Timothy McVeigh-trial, took several years, was highly complex and cost an enormous amount of money.

While estimated durations for the various steps of the ICC trials are definitely useful case-management tools and thus relevant to implement for the purpose of measuring expeditiousness, the ICC should be cautious about not being too ambitious when setting out such estimates. Hence, the ICC is better off making realistic estimates (inspired by comparable national trials and other international criminal tribunals), which the ICC can comply with, rather than setting out estimated durations for the proceedings, which are too short.

V. How to Adequately Take into Account the Complexity and Unique Character of each ICC Case

A large part of those who present criticism against the lack of expeditiousness of ICC trials are often (implicitly) making a benchmarking between ICC cases and trials adjudicated before national courts. If such comparison is made there is no doubt that ICC trials appear to be inappropriately long.

It is a matter of fact that ICC cases take a lot more time, when you compare the ICC case to a domestic, average criminal case. As a matter of exemplification in 2014 approximately 65 % of all criminal cases in Danish lower courts took no more than one single day (or even less). Furthermore, no more than 28 criminal cases took more than 15 days.18

To put that in perspective the average ICTY trial (comparable to ICC trials) lasted approximately 170 days.19 Hence, it is quite obvious that trials before international criminal tribunals, whether the ICC, ICTY or others, take much longer than domestic criminal trials in Denmark and probably in every single country around the world. It should be kept in mind, however, that international criminal court cases are indisputably much more comprehensive and both legally and factually more complicated than any “normal” national criminal court case, which one would come across.

On that background it can only be expected that the more complicated case the longer time spent. Hence, it would be both unfair and highly misleading if one would compare the estimated lengths for the various procedural stages in an ICC trial with durations (both actual and estimated) in national courts if one does not take into account the vastly more complex ICC cases.

For the above reasons, it is my suggestion that the ICC should adopt a method—together with the adoption of estimated and measurable durations for the various stages of the trial. The overall idea about this method, which without a doubt needs to be refined and further developed outside the scope of this comment, should be based on the number of trial witness, which are needed to complete the ICC case. Furthermore, the method should factor in the amount of trial exhibits, and finally take into account the overall amount of days in trial. By taking these three factors into account the ICC should develop a complexity matrix which could demonstrate how complex each ICC case is.

By using such a matrix there could be given a more fair and full picture of the expeditiousness of the ICC instead of only looking at the ICC’s compliance/non-compliance with the established estimated benchmarks for the various stages of the trial. The complexity matrix is thus intended to be a tool which should be used in conjunction with, and when interpreting, the data about the ICC’s (non)compliance with the stipulated benchmarks. My point with focusing on case complexity is that a better understanding of the complexity is a means of better understanding why the expected and actual duration of ICC trials can never be nearly as expeditious as domestic criminal cases.20

And even though it is generally accepted that international criminal cases, such as the cases pending before the ICC and ad hoc tribunals, are more extensive and complicated there is a lack of academic studies adequately analyzing and describing the complexity of such trials. However, the relevance of assessing and factoring in the complexity of international criminal trials calls for the ICC to allocate resources to this issue together with focusing on expeditiousness. Otherwise, it will not be possible to benchmark the expeditiousness against other courts. It is therefore my standpoint that concurrent focus on complexity together with establishing benchmarks for the ICC trials proceedings is appropriate. By assessing and factoring in the complexity of each ICC case both the ICC itself and involved stakeholders can in a more true and fair way keep track on how well the ICC is able to handle its cases with sufficient expeditiousness.

With the danger of preempting future results of the expeditiousness of the ICC, I feel relatively sure that pairing estimated benchmarks for the various stages of ICC trials proceedings will entail that one of the most persistent criticism of the ICC (duration of trials) will—if not be repudiated—then at least be seen and discussed in a more varied manner, i.e. show that the ICC is not necessarily so in-expeditious as we thought.

I also believe that the combination of benchmarks for duration and application of a complexity matrix will bring about positive side effects in other areas than just expeditiousness. More specifically, there is a likelihood that it will be easier for the States Parties to agree on the yearly budgets for the ICC, which is also a recurring topic giving rise to heated debates: what is the amount of money which the ICC really need?21

My point is that if it becomes more transparent how expeditious the ICC actually handles its cases—by pairing the benchmarks for procedural stages with complexity—then it will also be more transparent whether the ICC actually needs more resources/funding (often asserted by the ICC), or whether the ICC is not efficient and expeditious enough implying that the ICC could in fact do more with the funding already granted if the ICC just finished trials in a more expeditious manner (as asserted by some States Parties).22

Often the States Parties disagreements about allocation of funding to the ICC is based on disagreement about whether the ICC is too slow. However, if there is no objective data in this respect then such disagreements will to a large extent be very subjective, which is not a viable nor reliable basis for making decisions about whether the ICC has sufficient funding or not. Consequently, if the ICC develops the complexity matrix together with its focus on benchmarks for estimated lengths for trial proceedings then a positive side-effect would probably be that the budgeting process would be significantly improved.

Accordingly, the (lack of) speed in ICC trials and the developed estimations for time spent, need to be seen on the background of the very nature of the ICC cases. Thus with a complexity measure and time spent data for each procedural step during an ICC trial, I consider it doable—over time when more and more data becomes available—to calculate the efficiency of the ICC and compare the ICC’s capability of acting expeditious with other courts, i.e. both domestic courts and other international criminal tribunals.

Consequently, by not only looking at the duration of the various steps of the ICC trial, but also pairing the assessment with taking into account the complexity of ICC cases, then it might turn out that the ICC proves more efficient than comparable courts. And, if this is the case, then the ICC has not been inappropriately slow given the complexity of the cases it has tried.23

If the complexity if ICC cases is not taken into account when assessing the ICC’s future (non)compliance with the benchmarks for the various procedural stages, then it is my assertion that using compliance with stipulated benchmarks as a performance indicator for the ICC’s expeditiousness will be—if not misleading—then at least incomplete.

VI. (Lack of) Resources and Procedural Challenges

The year 2016 marked the ICC’s largest workload since the ICC became operational. Consequently, increasing its efficiency, including by improving expeditiousness of the ICC’s judicial proceedings, would be a challenge without adequate funding.24

Hence, I consider it very relevant to factor in the funding of the ICC when assessing the expeditiousness of the ICC, including its future compliance with benchmarks for the various stages of the trial proceedings. Just as the case is with the complexity of ICC cases, cf. above, it makes little sense to view and measure the ICC’s time spent on a case detached from factors affecting the time spent.

The ICC can be illustrated, as any other type of court—whether international or domestic—, by means of input, throughput and output.25 When it comes the ICC’s input one should distinguish between the cases and the resources. Thus, personnel of the ICC (primarily the ICC judges and the ICC staff), material (telephones, meeting rooms etc.), and funding, which—in effect—is the budget of the ICC, all constitute the resources of the ICC.

If one changes the level of the above mentioned resources of the ICC, this will inevitably entail a direct impact on the ICC’s capability of acting expeditious. With the fear of stating the obvious: if there is insufficient resources to the ICC (equipment, judges, staff etc.) then it is very likely that ICC cases will not be handled in a more expeditious manner. On the contrary, there will most likely be an increase of the length of proceedings and this will as a consequence entail that the ICC will have difficulties complying with the established benchmarks for the various stages of the trial.

When measuring the expeditiousness of the ICC there should also be accounted for the rules in the Rome Statute, which govern the ICC trials. Hence, when the States Parties and relevant stakeholders assess the ICC’s compliance or non-compliance with estimated benchmarks for the duration of the various steps of the court proceedings, it should somehow be factored in that the procedural rules in the Rome Statute might very well affect the length of the proceedings before the ICC.26

I therefore suggest that the far-reaching procedural rights to challenge the admissibility of the court proceedings, cf. the complementarity principle expressed in Articles 17 to 19 should be accounted for. This can be done by monitoring the occurrence of such challenges. Furthermore, the very broad scope of investigation, cf. Article 54(1)), is something that can and will entail that ICC trials are time consuming in a degree which might—on the surface—seem excessive. The investigation is not something that is within the ICC’s control. In addition, it should be taken into consideration that the Rome Statute contains rules about a confirmation hearing, cf. Article 61, the participation of victims at various stages of the court proceedings, cf. Article 68(3)), and rules which provide for reparation proceedings in Article 75.

All the before mentioned rules are rules are just selected examples, which could be considered to be changed and/or streamlined for the purpose of reducing the length of the ICC trials. If this is not possible, the measuring of the ICC potential non-compliance with established benchmarks for various stages in the court proceedings should give a detailed account for the correlation—if any—between the procedural rules in the Rome Statute.

This should be done on a case-by-case basis for each trial. The way it could done is that for each stage of the trial proceedings the ICC monitors and make note of to which extent the accused and implicated parties in the trial make use of procedural rules prolonging the trial.

Hence, any data for the ICC’s compliance with established benchmarks for the various stages of the proceedings should be followed by an explanatory note for each of the procedural stages setting out the procedural issues which have prolonged the specific procedural stage in question. Otherwise it will be very difficult to know whether it is the handling by the ICC as such, which have delayed the trial, or whether it is simply the result of application of rules contained in the Rome Statute.

I finally note, that there are rules regarding disqualification of judges in the Rome Statute, Article 41, which are combined with (in my view) a quite rigid regime as regards the possibility of assigning judges to division, cf. Article 39, which all together impedes the possibility for the ICC president to actually expedite and speed up trial proceedings. Finally, there is Article 74, which stipulates a very strict rule requiring the presence of all judges of the Chamber during trial.

All together I suggest that the States Parties—over time—consider to adjust some of the procedural rules contained in the Rome Statute actually working against the expeditiousness of the ICC. And before this is done (if ever done) the not so flexible rules should be kept in mind and taken into account when measuring the ICC’s capability of handling and finalizing trials in a sufficiently expeditious manner. My point is that it makes little sense to look narrowly at time spent if not also factoring in that some of the time spent is due to procedural rules, which the ICC has no influence on and is bound to work within.

VII. Conclusion

It is an ongoing discussion how to strike the right balance between enhancing the expeditiousness of a court while at the same safeguarding quality and procedural fairness. It is a very difficult challenge. By way of illustration, I find it worthwhile to highlight the decision from November 2010 in the ICC case against Jean-Pierre Bemba.27

In this case the majority of the judges issued a ruling a very short time before the commencement of the trial, according to which “all statements of witnesses to be called to give evidence at trial,” in addition to all the documents, which had been submitted to the Chamber in the prosecutor’s “List of Evidence,” should be prima facie admissible for the purpose of the trial at hand. This have by some commentators been described as a ruling on “wholesale admissibility” of evidence by the ICC.

In the majority of judges’ point of view, such ruling was in compliance with the legal, procedural framework for the ICC. In the majority’s view, such ruling was justified as the ruling increased the “expeditiousness and proper conduct of the proceedings as it will allow for more coherence between the pre-trial and trial stages of the proceedings.”

However, in the dissenting opinion rendered by Judge Kuniko Osaki it was expressed that the ruling made by the majority to oblige the prosecutor tendering “wholesale” of all witness statements in the case as evidence, without even conducting a prior assessment of the merits of each such witness statement, was clearly contrary to the principle of witness statements having to be given in person, which is embodied in the Rome Statute. In his point of view, such ruling would have a very far reaching impact on the proceedings’ fairness and Jean-Pierre Bemba’s right to defend himself.

The example illustrates two legitimate, but also sometimes contradicting interests: the majority based the decision on a rationale where expeditiousness of the trial was very important, where the dissenting Judge expressed concern about the—in his view—potential unfairness to Jean-Pierre Bemba.

No perfect solution exists when it comes to balancing expeditiousness against fairness and legal quality. However, I do consider it to be a good initiative and area of focus when the ICC has highlighted expeditiousness as a performance indicator for the ICC. In that respect, it also makes sense that the ICC will establish benchmarks for the duration of the various stages of the trial proceedings. However, and as discussed above, measuring time spent on a case should be done on a stand alone basis.

To get a true and fair view of the ICC’s expeditious handling of trials (or the lack hereof) and compliance with established benchmarks, the unique nature of each ICC case should be taken into account. Hence, the ICC should factor in the complexity of each case and measure the expeditiousness together with such complexity. Furthermore, it is advised that the ICC, when establishing the benchmarks for the duration of the various stages of the trial, seeks inspiration from other international criminal tribunals, and complex cases handled by national courts. It is advised that States Parties and other relevant stakeholders take into consideration the procedural rules contained in the Rome Statute, which can potentially impede the expeditiousness of the ICC. Finally, the resources and funding of the ICC should be factored in when assessing whether the ICC manages to handle cases in a sufficiently expeditious manner. If the ICC does not receive adequate funding, while at the same time being expected to adjudicate more cases and in a more expeditious manner, then it cannot be expected that the ICC manages to comply with the benchmarks for the duration of each stage of the trials. Hence, it is advised that the States Parties consider whether it is possible to provide additional funding to the ICC. If not, the ICC should establish very conservative benchmarks for the various stages of the proceedings in order to ensure its capability to comply with such benchmarks.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Shehzad Charania & John Doyle, Increasing the Efficiency of the Criminal Process at the International Criminal Court, While Preserving Individual Rights, ilawyerblog (Jul. 15, 2014), available online. ↩
2.
Coalition for the International Criminal Court, How can ICC Trials be More Efficient? (Nov. 24, 2015), available online. ↩
3.
See Justits Ministeriet [Danish Ministry of Justice], Bedre og mere effektiv behandling af civile sager ved domstolene [Better and More Effective Handling of Court Cases] (Dec. 18, 2013) (Den.) [hereinafter Danish Ministry of Justice], available online.

(The author of this comment is a practicing lawyer in Europe and can attest to the fact that the speed of national court proceedings is a constant topic for discussion). ↩
4.
Marco Fabri & Nadia Carboni, Saturn Guidelines For Judicial Time Management: Comments and Implementation Examples, CEPEJ (Jun. 22, 2015), available online. ↩
5.
International Criminal Court, Report of the Court on the Development of Performance Indicators for the International Criminal Court (Nov. 12, 2015), [hereinafter First Report], available online, archived. ↩
6.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], available online. ↩
7.
See inter alia, International Bar Association, ICC Monitoring and Outreach Programme: Enhancing Efficiency and Effectiveness of ICC Proceedings: a Work in Progress (Jan. 2011), available online. ↩
8.
Oona A. Hathaway, Between Power and Principle: An Integrated Theory of International Law, 72 U. Chi. L. Rev. 469 (2005), available online; Laurence R. Helfer & Anne-Marie Slaughter, Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93 Cal. L. Rev. 899, 906 (2005), available online; Antonio Cassese, Is the ICC Still Having Teething Problems?, 4 J. Int’l Crim. Just. 434, 441 (Jul. 1, 2006), Oxford Academic paywall, SSRN paywall, ResearchGate paywall. ↩
9.
See inter alia, James F. Alexander, The International Criminal Court and the Prevention of Atrocities: Predicting the Court’s Impact, 54 Vill. L. Rev. 1 (2009), available online; Elena Baylis, Reassessing the Role of International Criminal Law: Rebuilding National Courts Through Transnational Networks, 50 B.C. L. Rev. 1 (Jan. 1, 2009), available online; Yuval Shany, Assessing the Effectiveness of International Courts: A Goal-Based Approach, 106 Am. J. Int’l L. 225 (2012), available online, archived. ↩
10.
See inter alia, Daniel Donovan, International Criminal Court: Successes and Failures, Int’l Pol’y Dig. (Mar. 23, 2012), available online; Maria Dakolias, Court Performance Around the World: A Comparative Perspective, 1 Yale Hum. Rts. & Dev. L.J. 87 (1999), available online. ↩
11.
Folkedrab og Internationale Domstole [Genocide and International Courts], DIIS, available online (Den.) (last visited Jul. 19, 2017); Danish Ministry of Justice, supra note 3. ↩
12.
Guénaël Mettraux, Shireen Avis Fisher, Dermot Groome, Alex Whiting, Gabrielle McIntyre, Jérôme De Hemptinne & Göran Sluiter, Expert Initiative on Promoting Effectiveness at the International Criminal Court (Dec. 2014), available online, archived. ↩
13.
First Report, supra note 5. ↩
14.
Philipp Ambach & Klaus U. Rackwitz, A Model of International Judicial Administration? The Evolution of Managerial Practices at the International Criminal Court, 76 Law & Contemp. Probs. 119 (2013), available online. ↩
15.
On April 19, 1995, Timothy McVeigh, and his accomplice Terry Lynn Nichols, set off a bomb outside the Murrah Building in Oklahoma City, Oklahoma, that killed 168 people and injured numerous more. See United States v. McVeigh, 153 F.3d 1166, 1176 (10th Cir. Sep. 8, 1998), available online. ↩
16.
Stuart Ford, Complexity and Efficiency at International Criminal Courts, 29 Emory Int’l L. Rev. 1 (2014), available online, archived. ↩
17.
Id. ↩
18.
See Danish Ministry of Justice, supra note 3. ↩
19.
Susana SáCouto & Katherine Cleary, Expediting Proceedings at the International Criminal Court (Am. U. Wash. C. L., WCRO, Jun. 2011) [hereinafter Expediting Proceedings], available online. ↩
20.
Ford, supra note 16; Mattraux et al., supra note 12. ↩
21.
Id. ↩
22.
Ambach & Rackwitz, supra note 14; Expediting Proceedings, supra note 19. ↩
23.
See also Ford, supra note 16. ↩
24.
Press Release, General Assembly, Debating Report of International Criminal Court, Delegates Stress Need for Court’s Adequate Funding, Accession by Member States to Rome Statute, GA/11720 (Nov. 6, 2015), available online. ↩
25.
Shany, supra note 9. ↩
26.
See inter alia, Håkan Friman, Fabricio Guariglia, Claus Kress, John Rason Spencer & Vladimir Tochilovsky, Measures Available to the International Criminal Court to Reduce the Length of Proceedings, Informal Expert Paper, ICC OTP (2003), available online; Richard Dicker & Elise Keppler, Beyond the Hague: The Challenges of International Justice, in Human Rights and Armed Conflict 194 (HRW, Jan. 2004), available online. ↩
27.
Bemba Case, ICC, available online (last visited Jul. 19, 2017) ↩

Hanni Maoz
6350
August 14, 2017
9:37 am

Evaluation of the Court Performance: A Critical View of the International Criminal Court Indicators for Security

Introduction

In November 2015, the International Criminal Court (the ICC or the Court) released Report of the Court on the development of performance indicators for the International Criminal Court.1 This First Report contained qualitative and quantitative indicators that were supposed to allow Court to understand better its achievements, needs, and performance.2

One of the four key goals stated in the First Report was: “Security, including protection of those at risk from involvement with the Court.”3 The two indicators given by the Court to evaluate its performance and effective operation includes two criteria—that the data that would be examine will be based on security incidents with information that led to actual harm and that the pool of people that would be examine would contain witnesses and staff.4

In this comment, I argue that those two criteria were drawn incorrectly and too narrowly, causing the indicators to be inaccurate and therefore could—and probably would—lead to non-accurate results.

I start by explaining the important role of witnesses at the ICC, how one becomes a witness and what are the protection measures offered by Court. I explain what is the difference between a witness and a potential witness. I discuss in greater detail the two indicators presented above and present a new follow-up report published in 2016, the Second Report.5

After this background, I present my argument, explaining why I think that potential witnesses and subjective data should be included in Court criteria. I show how selection bias of different kinds is causing the current indicators to be inaccurate and might—and probably will—lead to non-accurate results. I end this comment by proposing a data collecting tool in the form of a survey that will enable Court to collect and process the witnesses and potential witnesses’ subjective information and data.

I. The Role of Witnesses at the International Criminal Court and the Protective Measures Offered to Them

In March 2013, one month before the trial was set to begin, the Prosecutor of the International Criminal Court […] withdrew all charges against Mr. Francis Kirimi Muthaura, former head of the Kenyan civil service who had been jointly charged with Kenyan President, Mr. Uhuru Kenyatta. The prosecution alleged that, due to critical problems with key eyewitnesses and the loss of potential evidence, it was no longer able to establish the case against Mr. Muthaura beyond reasonable doubt.6

Many academic discussions centered around the importance of witnesses in an ICC proceeding, however, I believe that the above account best exemplifies this principle in practice. The evidence of witness testimony plays a critical role in fact-finding carried out by the ICC. As of 2010, the ICC had engaged with around 520 witnesses;7 and, as of 2013, at least 199 witnesses had testified before the Court in The Hague.8 Those witnesses and their testimony allowed the ICC to reach its decisions and bring about what many believe to be justice.

Witnesses can assist Court in two main aspects. First, contrary to domestic judges, most ICC judges have never visited the countries they are discussing.9 Hence, they have never seen with their own eyes the nature of the crimes alleged and the cultural nuances. Hearing the testimony of witnesses can help the Court understand those complex situations and fill in those gaps in its knowledge.10 The second potential assistance regards fact finding that determines the holding of the case. As described in the Francis Kirimi Muthaura case above, the outcome of a trial is heavily related to the existence and quality of the testimony of witnesses.11

The ICC, in contrast to domestic courts, does not have any legal authority to force individuals to testify or take any part in its proceedings.12 Even if an individual is a key witness whose testimony is essential to the deliberations of the ICC, if the witness did not voluntary agreed to testify, there is no legal way to force the witness to do so.13

The power to investigate and to question the suspects, victims, and witnesses is within the authority of the ICC’s Office of the Prosecutor (OTP).14 The process of finding witnesses and deciding which one to bring to The Hague has several stages. First, OTP investigators travel to the relevant country;15 or, in a case of a potential witnesses that has escaped to another country, at the witness’s new location.16

After finding the potential witness and receiving his or her agreement, the investigator and the potential witness have a preliminary meeting to prepare for the questions and topics that will be discussed during the full interview.17

After the first meeting, the two sides meet again for the full interview. At this meeting, the potential witness is given information about the Court and the expected process if he or she becomes a witness.18 Together, the investigator and the potential witness fill out a witness statement. This statement is forwarded to a joint team. The team includes investigators, prosecutors, and cooperation staff that decide which potential witnesses are the most suitable to be brought to testify in The Hague.19 Only after the team makes its decision—and the potential witness agrees to testify—does the status of the potential witness change to witness.

The unique voluntary requirement mentioned above also means that the ICC must act and treat its witnesses in a way that will make them want to voluntarily cooperate with it. One of the most important issues is assuring the personal safety of witnesses, as a person might fear for his or her personal safety or have second thoughts about testifying before the Court.

To assure witness safety, the ICC has a fairly developed mechanism. Within the Court, the Registry operates the Victims and Witnesses Unit (the unit).20 As described in the Rome Statute, the role of this unit is to provide protective measures and security arrangements to:

[W]itnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses.21

The protective measures and security arrangements provided by the unit, are divided into three categories on the ICC official website. The first category is operational protective measures, that can be implemented where witnesses reside.22 The second one is procedural protective measures that can be ordered by the Court.23 Stating that it’s a last resort protective measure, the ICC also offers a third category, relocation of the witness and his or her close relative from the source of threat. This solution can be offered on a temporary or permanent basis, and the relocation can be within the borders of the witness country or outside of it.24 Selection of the right measure to be chosen will be determined after an interview with the witness.25

II. The Performance Indicators made by the Court

A. The First Report of the Court on the development of performance indicators for the International Criminal Court

As described in the Introduction, in November 2015 the ICC released the Report of the Court on the development of performance indicators for the International Criminal Court.26 The report was created as a response to a request from the Assembly of States Parties to:

[I]ntensify its (the Court) efforts to develop qualitative and quantitative indicators that would allow the Court to demonstrate better its achievements and needs, as well as allowing States Parties to assess the Court’s performance in a more strategic manner.27

In this report, the Court set four key goals for assessing its performance and measuring its success.28 These goals were:29

The Court’s proceedings are expeditious, fair and transparent at every stage;

The ICC’s leadership and management are effective;

The ICC ensures adequate security for its work, including protection of those at risk from involvement with the Court; and

Victims have adequate access to the Court.

As mentioned, the key goal that is relevant for the purpose of this comment is the third one that regards the security of the persons involved with the ICC. In the report, it is explained that measuring the Court’s performance in the contexts of security will help it in assessing its effective operation.30 The ICC delineates two relevant performance indicators that, in regards to witnesses, will be measured against ones that are in court protection programs.31 Those indicators were:32

% of security incidents with witnesses, staff or information that led to actual harm compared to the total amount of incidents.

For the incidents that led to actual harm, % due to the Court’s error.

From indicator (a) it can be concluded that the group of people that would be included in the measurement are the ones referred to in part I as witnesses and Court staff. That conclusion also means that any potential witness would not be included. Moreover, from the combination of the two indicators it can be concluded that the measurement will only include security incidents and would not be based on the witness’ subjective feelings and thoughts regarding his or her safety. Those two conclusions are extremely important to establishing my argument and will be discussed extensively below.

B. The Second Report of the Court on the development of performance indicators for the International Criminal Court

One year later, in November 2016, the ICC released a follow-up report. In this report, the four key goals remained the same, but some measurable criteria and initial data were added.33 As to the third goal, the ICC divided the term security into two subdivisions—physical and asset security and information security.34 In every subdivision three general questions were asked:35

Determination of the general threat level that the Court is facing;

Has the Court implemented an appropriate/proportionate threat management programme?;

When a risk manifests itself, has the Court’s security framework proven adequate in the circumstances?

Like the performance indicators in the First Report, those questions and criteria would be measured against witnesses (in contrast to the group defined as potential witnesses), that are included in Court protection programs. Moreover, none of the new factors or questions stated in the Second Report includes a wider range of elements other than security incidents.

III. Selection Bias in the Performance Indicators made by the Court

As discussed above, the indicators laid by the ICC contains two main criteria:

The pool of people that will be examined—This group will include witnesses and staff (from this point on, the term group will refer to the witnesses and not to the staff.) As defined above, witnesses would be individuals that voluntarily agreed to cooperate with the Court and that were chosen by it.
The character and scope of the data examined—This criterion includes only security incidents or incidences that led to actual harm.

My argument is that those two current criteria were drawn incorrectly and too narrowly, causing the indicators to be inaccurate and therefore could and probably would lead to non-accurate results. This phenomenon is referred to in the research and statistic literature as “Selection Bias.” The dictionary definition of selection bias is:

Any source of bias that arises when a supposedly random sample has been chosen in ways that allow cases to drop out, or cases to be chosen with unequal likelihoods, in unintended ways.36

Selection Bias might “lead to erroneous conclusions about a phenomenon because it weakly represents the true nature of a population.”37

Before I try to prove why I think that the two criteria of the ICC indicators suffer from Selection Bias, I would like to explain what I think the right criteria should be:

The pool of people that will be examined—The right pool of people should not only contain the actual witnesses, but it should be broader and include potential witnesses. As described above, those potential witnesses would be on any stage of communication with the court, until the final diction of the joint team and their final voluntary agreement to become witnesses.
The character and scope of the data examined—The data examined should include subjective characters in addition to the current more objective ones. This way the scope of the data would be broader. What I refer to as subjective characters could be the potential witness or the actual witness lack of sense of security or security concerns. Those concerns might lead a potential witness to decide not to become a witness, or for a witness to hesitate before deciding to become one.

The first stage in proving the selection bias nature of the current version of the indicators is to understand their aim: what is it that they are trying to measure? As described in the First Report, security as an indicator is important for the effective operation of the Court, its risk management, strategic planning, and operation.38 A narrow interpretation of those aims would be the one the Court chose in its reports. An effective Court will be the one that gives the highest security protection to its witnesses.

I disagree with this interpretation. I believe that in order to really evaluate and measure the Court’s effectiveness, the security of a broader group of people needs to be measured. In part I, the importance of witnesses to the ICC was discussed. As mentioned there, charges can be dropped in case of inadmissible or unsatisfying testimony or if there are no witnesses available to Court. From that it can be concluded that an effective and well-functioning court is one that has wide access to witnesses and can allow itself to pick the most qualified among them.

An ineffective court would be one that does not have this privilege. A reason for that can be related to qualified potential witnesses deciding not to became witnesses because of security-related fears and worries. Those individuals would rather not cooperate with Court because they do not trust it to be able to protect them from the threat they are under (regardless of the existence of such threat).

This is why I believe that having indicators that solely measures the security of witnesses based on security incidents would “allow cases to drop out” as mentioned in the Oxford Dictionary’s definition of selection bias. Those cases are the potential witnesses’ cases and they are essential to the evaluation of Court effectiveness in terms of security. Not including the potential witnesses and their subjective views on Court performance security-wise will in fact lead to erroneous conclusions and would not give the ICC the full picture it’s looking for.

To illustrate my argument, I examine three hypothetical scenarios—three make believe worlds—and apply on them both the current version of the indicators and the offered version of them.

No security provided—In this scenario, the level of security that the ICC provides is so low that no person is willing to become a witness.
1. Under the current version of the indicators—the performance of the Court in terms of security is spotless, since no security incidents or incidences that led to actual harm was made. Of course this outcome is extremely erroneous and does not give the full picture of the Court performance and effectiveness security-wise.
2. Under the offered version of the indicators—the potential witnesses would be included and their fear of safety is legitimate data to be used. This data provides the ICC with the full picture regarding its ineffectiveness, and its problematic performance in terms of security.
Perfect security provided—In this scenario, the level of security that the ICC provide is so high that there are no security incidents, incidences that led to actual harm, or potential witnesses that decided not to become witnesses because of security concerns. This is the only scenario where using the offered version of the indicators will not be needed, since using the current version of them leads to accurate results and reflects the true effectiveness and performance of the court in terms of security.
Diverse levels of security provided—In this scenario, the levels of security provided by the ICC are not fixed or equal, but are influenced by different factors, like the conflicts regimes, the scope of the potential threat, the identity of the witness or potential witness, and more. Unlike the first two scenarios that were rather imaginary, the last one is probably similar to the real level of security provided by the ICC.
1. Under the current version of the indicators—As to the witnesses, the ICC will receive a full picture regarding its ability to handle objective threats. It will not receive any subjective information that will indicate whether those witnesses had any doubts whether to become ones. Since this scenario is not identical to the second scenario (Perfect security provided), the data regarding fears and doubts could have helped the Court evaluate its performance even when it comes to witnesses that agree to cooperate with it.
  
  The main issue regarding this scenario and the current version of the indicators is involving potential witnesses. At this point I would like to perform a mental exercise. In terms of security, the main—and perhaps the only—reason for a potential witness to decide not to become a witness is because he or she will think that the security offered to them by the Court is not adequate. The potential reasons for that will be discussed extensively below, but it could be over relatively proven facts or over a gut feeling.
  
  From this perspective, the potential witness from scenario 1 (No security provided) and the potential witness from this scenario are very similar. The main difference between these two is the instance of the Courts shortage of protection and the percentage of those potential witnesses out of the population approach by the Court as a whole. The lack of trust in the Court’s ability to supply adequate security remains the same.
  
  This is why I think that, just as it was obvious on the first scenario that the current version of the indicators would lead to an extremely erroneous outcome, it should be obvious that this third scenario leads to a similarly erroneous outcome.
2. Under the offered version of the indicators—Once the Court includes potential witnesses alongside the witnesses in its measure of security and effectiveness, it would be able to evaluate its true performance (or at least receive a better evaluation of it).

Up to this point, I’ve addressed selection bias as one term; but, in fact, there are several sub-categories of optional biases.39 In my opinion, at least two of those sub-categories are relevant to the case of the ICC security-performance indicators. I will shortly address those sub-categories.

Sampling selection bias40—This kind of bias is the classical one. Its definition is identical to the one given above.41 In this case and as discussed, the bias arises as a result of the Court’s decision regarding who to sample (witnesses) and who to leave outside of the sampling group (potential witnesses).42 The outcome of this bias will be, as described, a partial result, and therefore an incorrect one.
Self-selection sampling bias—As it might be implied from its name, this kind of bias can be caused as a result of the behavior or the decisions of the subjects themselves.43 The dictionary definition of self-selection sampling bias is:44

A form of non-random selection for a research project in which the subjects have responded to a general invitation to take part in a survey, focus group, or other form of research in which the general area of research may be known to them in advance and towards which they have an opinion.

This case might not seem like the classical form of self-selection sampling bias, since the witnesses did not choose to be included in the Court’s indicators. Yet I think that the act of self-selection occurred prior to the stage of current indicators examination: it occurred when that witness chooses (voluntarily) to became one.

As described above, those witnesses choose to became ones because they felt that court can protect them and provide them with the level of security they need. Therefore, those individuals have an opinion regarding this subject, as described in the definition above.

Moreover, I do not have any information about the profile of a common ICC witness, but there is a possibility that those who agree to testify are not the weakest or the most threatened ones. This possibility is reasonable because those individuals are willing to face a potential threat that will be caused despite the Court’s protection.

Those reasons could lead to a problematic outcome:

The outcomes can be very similar to selection bias, in that the sample may be insufficiently representative of the population of interest, and in the testing of hypotheses or the evaluation of an experiment it makes it difficult to separate cause-and-effect.45

In this case, if the ones who are included in the indicators are the ones described in the last paragraph, then it would be hard to separate cause-and-effect from the data that would be supplied regarding their safety.

IV. A Proposal for a Collecting Data Tool

A. The collection of data challenge

So far, I’ve been discussing the biases and the downfalls that can be found in the measuring indicators suggested by Court. My suggestion to include the potential witnesses and their subjective sense of security or security concerns, may cause a new challenge to the Court.

The data examined under the Court’s current version of the indicators is fairly easy to collect. First, it usually can be found easily, since those security incidents or information that led to actual harm are documented in the Court’s database. Moreover, and maybe more important, this data is objective and therefore pretty easy to measure.

In contrast, the data that the offered version of the indicators is based on is quite hard to collect. First, this information cannot be found in the Court’s database, since it deals with potential witnesses that did not became witnesses. Moreover, and again maybe more importantly, this data is of the subjective kind (as mentioned above, it relates to the sense of security or security concerns of potential witnesses).

Subjective data is hard to collect since there is no other way to receive it other than from the individual that experienced it. Also, it is a problematic source of information to relay on, since there is no way to verify the validity of it.

B. The surveys solution

Due to the challenge mentioned above, I believe that the right collecting data tool for the Court to be using is anonymous and confidential surveys. If the Court wants to know what are the thoughts and fears of those potential witnesses, there is no other way to receive this information than to ask them about it. In order to receive the full picture regarding the Court’s performance security-wise, those surveys should include both witnesses and potential witnesses. Including both groups will enable Court to understand the frequency and severity of those fears and feelings of lack of security among individuals that have been in touch with the court at some stage.

Of course, this solution is not flawless. First of all, the Court needs to convince those people to participate in this survey. There probably won’t be any problem with the witnesses’ cooperation, since they cooperated well with the court so far. But potential witnesses might not be willing to participate in those surveys. This lack of cooperation can be a result of numerous reasons, including lack of faith in Court, fear of being identified with it, or lack of documents and other relevant material to back up their statements.

In order to overcome the above obstacle, the Court needs to convince those individuals that they will benefit from filling out the survey without causing this benefit to influence their response to the survey. Moreover, the surveys supplied should be accessible in the language(s) spoken and written in the conflict country and should be phrased in a clear and simple way.46 In cases of illiterate persons, a technology that would be able to overcome reading and writing difficulties needs to be considered.47

The other potential flaw in surveys is that they do not overcome the lack of ability to verify the validity of the information given mentioned above. There could be many reasons that can cause witnesses to be dishonest in their response. It could be a will to be liked or to be considered normal, that cause witnesses to reply with answers that they believes that show them in a better light. This is another potential bias known as “social desirability response set,”48 which is:

A predisposition or readiness to respond to items of a multiple-choice questionnaire with responses calculated to present oneself in a favorable light according to perceived social norms and values.49

It could also be because the potential witness fears the potential threat that caused him not to became a witness in the first place to and he or she does not want this threat to be exposed.

Notwithstanding the foregoing, I do think that the advantages of having a survey and the unique information that can be received only through it, outweighs its potential disadvantages.

C. Highlights regarding the content of the survey

I do not think that the scope of this comment, or my limited understanding in research methods, will enable me to fully describe the structure or the content of the perfect survey to evaluate the Court’s performance. Nevertheless, I do want to mention some topics that I think it’s important for the Court to ask about and clarify:

The first question to be asked in the survey should eliminate those potential witnesses who decided not to became witnesses for reasons other than security concerns.50 While the general willingness of potential witnesses to cooperate with the Court is important in order to understand its performance, the aim of this survey is to reserve information regarding the Court’s security performance.
In order for the Court to fully understand why a potential witness decided not to become a witness, it needs more than the security title. The survey should narrow down the specific reason that caused potential witnesses to feel that they cannot receive enough protection from the Court. The Court needs to know whether the fear was based on an actual threat on their life or was it a non-tangible fear. Did they expect an immediate or a more drastic protection measure than the ones offered to them?

These questions—and a lot more—should be addressed to the potential witnesses. Identifying the source of the fear is a first step to understanding the Court performance in terms of security and maybe could even lead to the Court taking measures to improve itself.
The survey should include questions regarding the background of the potential witnesses. Those questions are needed in order to build a better database of witness indicators. Those indicators will allow the Court to identify in advance potential witnesses that possibly will subsequently develop security concerns that will lead them to not cooperate with the Court.

For example, if a substantial number of women between the ages of 25 to 34, who live in remote villages, describe a similar reason for the fear they are sensing, then the Court could develop tools to try and prevent in advance the defection of the next potential witness with similar characteristics.

Conclusion

Formalization of indicators to measure the Court’s performance in terms of security is not an easy task. As I tried to demonstrate throughout this comment, the way in which one interprets the meaning of terms like performance, effectiveness or even security is critical in the process of defining the limits of those indicators.

The way in which the ICC chooses to form its indicators presents a more narrow and limited interpretation of those terms. Although this way might lead to relatively successful results or information if the scope is as narrow as the Court chose, I believe that it does not present the full picture regarding the Court’s performance.

Only after the Court overcomes the different kinds of selection bias in its performance indicators will it receive the full picture mentioned above. As I explained and demonstrated, in my opinion, the right way to do so is to expand both the pool of people and the nature of the data that would be included under those indicators. Only after this necessary redesign of the Court’s indicators can it fully evaluate its true performance.

As claimed in the last part of this comment, the next step after this evaluation would be to use the data received in order to improve the Court’s performance. Whether in the form of preventing security incidents to witnesses or in different methods to predict and prevent potential witnesses from deciding not to cooperate with the Court. The way to shape those steps is up for the Court to decide, but it’s important that, before doing so, it relies on true and accurate information regarding its performance.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Assembly of States Parties, Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/13/Res.5 at Annex I, ¶7(b) p.47 (Dec. 17, 2014), available online. ↩
2.
International Criminal Court, Report of the Court on the Development of Performance Indicators for the International Criminal Court, 1 (Nov. 12, 2015), [hereinafter First Report], available online, archived. ↩
3.
Id. at 6. ↩
4.
Id. ↩
5.
International Criminal Court, Second Court’s Report on the Development of Performance Indicators for the International Criminal Court (Nov. 11, 2016), [hereinafter Second Report], available online, archived. ↩
6.
International Bar Association, Witnesses before the International Criminal Court: An International Bar Association International Criminal Court Programme Report on the ICC’s Efforts and Challenges to Protect, Support and Ensure the Rights of Witnesses, 1 (Jul. 2013), available online ↩
7.
Chris Mahony, The Justice Sector Afterthought: Witness Protection in Africa, Inst. Sec. Studies, 17 (2010), available online. ↩
8.
Witnesses Before the ICC, supra note 6, at 14. ↩
9.
Id. at 12. ↩
10.
Id. ↩
11.
Dermot Groome, No Witness, No Case: An Assessment of the Conduct and Quality of ICC Investigations, 3 Penn St. J. L. Int’l Aff. 1, 3 (Apr. 2014), available online.

(“On my first day as a prosecutor in the Manhattan District Attorney’s Office, my bureau chief, Warren J. Murray Jr., began our training by introducing us to a few of his well-known prosecutorial maxims or ‘rules.’ Rule number one, his first and most important was: ‘No witness—no case.’”). ↩
12.
Witnesses Before the ICC, supra note 6, at 15. ↩
13.
Id. ↩
14.
William A. Schabas, An Introduction To The International Criminal Court, 248–49 (4th ed. 2011). ↩
15.
Id. ↩
16.
Carla Ferstman, Video Lecture, Comment on the Victims Question: How can Victims’ Representation at the ICC be Improved and Victims’ Rights be Protected?, ICC Forum, at 23:08 (Feb. 12, 2013), available online. ↩
17.
Sheila Vélez, Katanga and Ngudjolo Chronicle #2: Head of the OTP Investigation Team, Aegis Trust (Nov. 25, 2009), available online. ↩
18.
Id. ↩
19.
Id. ↩
20.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 43(6), available online. ↩
21.
Id. ↩
22.
International Criminal Court, Understanding the International Criminal Court 40 (Aug. 22, 2013), available online, archived.

(“[T]he Initial Response System is a 24/7 emergency response system that enables the Court, where feasible, to extract witnesses to a safe location should they be targeted or in fear of being targeted. Other operational protective measures include educating witnesses on the importance of confidentiality and cover stories or agreeing on an emergency backup plan.”). ↩
23.
E.g., id.

(“Such measures may consist of face/voice distortion or the use of a pseudonym. Separate special measures can be ordered by the Court for traumatised witnesses, a child, an elderly person or a victim of sexual violence. These can include facilitating the testimony of witnesses by allowing a psychologist or family member to be present while the witness gives testimony or the use of a curtain to shield the witness from direct eye contact with the accused.”). ↩
24.
Id. ↩
25.
Id. ↩
26.
Strengthening the ICC and ASP, supra note 1, at ¶ 7(b). ↩
27.
First Report, supra note 2, at 1. ↩
28.
Id. ↩
29.
Id. ↩
30.
Id. at 6. ↩
31.
Id. ↩
32.
Id. ↩
33.
Second Report, supra note 5, at 1. ↩
34.
Id. at 13. ↩
35.
Id. at 14. ↩
36.
Mark Elliot et al., A Dictionary of Social Research Methods, Oxford Ref. (2016), available online (last visited Jul. 20, 2017). ↩
37.
Noel Castree et al., A Dictionary of Human Geography, Oxford Ref. (2013), available online (last visited Jul. 20, 2017). ↩
38.
First Report, supra note 2, at 6. ↩
39.
David Collier & James Mahoney, Insights and Pitfalls: Selection Bias in Qualitative Research, 49 World Pol. 56 (1996), available online. ↩
40.
James J. Heckman, Sample Selection Bias as a Specification Error, 47 Econometrica 153, 154–155 (Jan. 1979), available online. ↩
41.
Id. ↩
42.
Id. at 153.

(“Sample selection bias may arise in practice for two reasons. First, there may be self selection by the individuals or data units being investigated. Second, sample selection decisions by analysts or data processors operate in much the same fashion as self selection.”). ↩
43.
Collier & Mahoney, supra note 35, at 59. ↩
44.
John Duignan, A Dictionary of Business Research Methods, Oxford Ref. (2016), available online (last visited Jul. 20, 2017). ↩
45.
Id. ↩
46.
Ferstman, supra note 16, at 33:47.

(Carla Ferstman describes how a difficult application process, as a result of unclear forms or the lack of forms in the victim’s language, can cause the victim to not cooperate with the Court). ↩
47.
Id. ↩
48.
“Social Desirability Response Set” in Andrew M. Colman, A Dictionary of Psychology, Oxford Ref. (2015), available online (last visited Jul. 20, 2017). ↩
49.
Id. ↩
50.
Kelly Dawn Askin, Can the ICC Sustain a Conviction for the Underlying Crime of Mass Rape Without Testimony from Victims?, in Contemporary Issues Facing the International Criminal Court (Richard H. Steinberg ed., 2016), earlier version (Jun. 26, 2012) available online; Ferstman, supra note 16.

(There are numerous reasons that can cause potential witnesses to decide not to testify. Among them can be found: the lack of trust in the ICC as a whole, the cultural differences that could lead to a different perception of justice, the trauma that accompanies the testimonial process, and the distant and culturally different location of the court that could be intimidating to some. This is just a short list; there are many more). ↩

cgsanchez
6369
August 19, 2017
9:27 am

The Al Mahdi Case Study: Establishing a Media Bias Baseline to Support Future Research Regarding how ICC’s Operations Affects Public Perception

International media reaction to the case The Prosecution v. Ahmad Al Faqi Al Mahdi heard in the International Criminal Court reveals that the case’s timeline, a country’s governance structure, and whether or not the country is an ICC state party, significantly impact whether a country’s news presentations about the case are positive, neutral, or negative.

I. Introduction

In November 2015, the International Criminal Court (“ICC”) released a report, detailing its progress towards the implementation of performance indicators to measure its success in various areas.1 The focus of the report was the development of Court-wide indicators.2 The development of additional performance indicators, reflecting the specific functions of the main organs, flowed from this.3

The Office of the Prosecutor (“OTP”), one of three main organs of the ICC, further reflected on specific performance indicators that could be developed to measure the OTP in its 2016–2018 Strategic Plan.4 In the Strategic Plan, the OTP selected 14 out of a potential 60 different activities the OTP fulfills that could be quantified and compared to develop performance indicators.5 The 14 activities that the OTP selected to serve as performance indicators were what the OTP called operational factors. Operational factors included things like “Compliance with key Office policies and standards,” “Implementation of training program per year: planned versus actual,” and “Prosecutorial results in terms perpetrators.”6 The OTP stated that these operational factors were selected to be performance indicators, in part, because they were within the control of the OTP.7 The OTP stated, however, that the other factors not chosen to be performance indicators in the Strategic Plan were still “potentially relevant performance indicators.”8

The OTP in the Strategic Plan created a framework to capture the various factors that were found to be potentially relevant performance indicators.9 One key group of factors the OTP created in the framework were what the OTP called strategic factors. The OTP’s framework showed that strategic factors started with the OTP’s “effectiveness,” which included prosecutorial results, crime prevention, and complementarity. The framework then hypothesized that the OTP’s effectiveness affects perceptions regarding the OTP (and most likely the ICC as well).

The Strategic Plan hypothesized how the operational factors it chose to form performance indicators may affect the strategic factors, including perception.10 The Plan stated, “Strategic [factors] measure whether the Office is achieving its intended mandate under the Rome Statute. Operational [factors] measure whether the Office is implementing its strategy which in turn is assumed to impact positively on the strategic [factors].”11 The OTP seems to be implying with this statement that if the OTP positively improves its operations then perceptions of the OTP will also positively improve. While it does align with common sense that operating well means that others will perceive the OTP more positively, this assumption glossing over the realization made earlier in the Plan that strategic [factors] are not controlled by the OTP. External forces that might affect this relationship must be measures to determine the validity of that assumption.

This comment aims to tackle that issue by measuring international media bias in relation to the OTP and ICC. Media bias is an external force not under the OTP’s control that may affect perceptions regarding the OTP and the ICC more generally.12,13,14,15 It would therefore be useful to determine what, if any, media biases regarding the ICC exist and then try to determine how that affects perceptions. This task for one comment, however, must be constrained for pragmatic reasons. Therefore, this comment hopes to serve a few key purposes.

First, this comment proposes an ideal method that could be used in the future to quantify and measure international media bias. Second, this comment then shows how this proposed measure can be applied by using the international reaction to the ICC’s latest guilty verdict in The Prosecutor v. Ahmad Al Faqi Al Mahdi as a case study to determine whether international media biases exist and test hypotheses about how the case’s timeline and countries’ characteristics may affect media bias.

The hopes of this comment are that the results of these hypotheses and the numbers produced from the Al Mahdi case study may then serve as the first of two parts necessary to form a baseline measure of how operational factors interact with strategic factors including perception. If a future study goes back to the records of the Al Mahdi case to determine the operational factor measures and then combines that information with the information in this comment, then a baseline could be formed to compare with all future cases to determine, for example, whether an increase in operational factors does increase positive perceptions of the ICC.

II. Background: The Prosecutor v. Ahmad Al Faqi Al Mahdi

A. The Malian Conflict and Destruction of Mausoleums in Timbuktu

Mali became a state party of the ICC on August 16, 2000.16 Then on March 21, 2012, the Malian army overthrew the government because of its inability to deal with Tuareg rebels.17 Two Islamic insurgency groups, Ansar Dine and Al-Qaeda in the Islamic Maghreb (“AQIM”), took advantage of the situation.18 They managed to gain partial control over northern Mali and started implementing their version of sharia law in the area.19 The Malian government referred the situation to the ICC on July 13, 2012.20

From then until January 2013, Ansar Dine and AQIM imposed their religious and political edicts on the territory of Timbuktu and its people.21 They did so through a local government, which included an Islamic tribunal, an Islamic police force, a media commission, and a “morality brigade” called the Hesbah.22 Ahmad Al Faqi Al Mahdi was very active in aspects of the Ansar Dine and AQIM administration.23 He led the Hesbah from its creation in April 2012 until September 2012 and wrote a document on its role and objectives.24

In late June 2012, the leader of Ansar Dine—Iyad Ag Ghaly—made the decision to destroy ancient mausoleums and mosques that were historically, culturally, and religiously significant to the people of Timbuktu.25 Al Mahdi, in his capacity as the chief of the Hesbah, was given the instructions to fulfill the destruction of the mausoleums.26 Despite his initial reservations, Al Mahdi agreed to conduct the attack without hesitation on receipt of the instruction.27 Al Mahdi wrote a sermon dedicated to the destruction of the mausoleums, which was read at the Friday prayer at the launch of the attack.28 Al Mahdi then made the necessary logistical arrangements and supervised the execution of the operations by using Hesbah’s members and determining the sequence in which the buildings would be destroyed.29 He also justified the attack to the broader world through media interviews.30 Al Mahdi was present at all of the attack sites, giving instructions and moral support, and he personally participated in the attacks that led to the destruction of at least five sites.31

B. International Intervention and Al Madhi’s Arrest

In response to an official request by the Malian interim government for French military assistance and the United Nations Security Council Resolution 2085, the French military started Operation Serval on January 11, 2013.32 The aim of the operation was to oust Islamic militants including Ansar Dine and AQIM in the north of Mali, who had begun a push into the center of Mali.33 Three days later, on January 16, 2013, the OTP opened its investigation into war crimes in Mali.34 Al Mahdi attempted to flee to Niger most likely due to Operation Serval.35 However, Al Mahdi was later arrested in Niger in 2014 when French troops intercepted an arms-smuggling convoy.36,37

C. The Initial Appearance and Charges Confirmation

Multiple important events in the Al Mahdi case then happened in quick succession in late September 2015. The ICC filed an arrest warrant for Al Mahdi on September 18, 2015.38,39 A week later, on September 26, 2015, Al Mahdi was transferred to ICC custody by Niger authorities.40 Al Mahdi then made his first court appearance on September 30, 2015 for the initial appearance hearing.41 At the initial appearance hearing, a judge verified the identity of Al Mahdi and determined that Al Mahdi would be able to follow along with the court proceedings in Arabic.42

The confirmation of charges took place on March 1, 2016.43 Al Mahdi was accused, under Article 8(2)(e)(iv) of the Rome Statute, of:

Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.”44

Nine out of the ten sites that were destroyed in Timbuktu were designated as UNESCO World Heritage sites.45

On March 24, 2016, ICC Pre-Trial Chamber I confirmed against Al Mahdi the war crime charge regarding the destruction of historical and religious monuments in Timbuktu and committed Al Mahdi to trial before a Trial Chamber.46 This would be the first time an Islamic jihadist would be tried in front of the ICC.47

D. The Trial and Guilty Plea

The trial took place on August 22–24, 2016.48 At the opening of the trial, Al Mahdi admitted guilt as to the destruction of historical and religious monuments.49 This was the first time a defendant pleaded guilty at the ICC.50 The judges made sure that Al Mahdi realized he was giving away most of his rights by pleading guilty.51 The judges also emphasized that they had the right to decide his sentence, which could have resulted in a prison sentence of up to 30 years, despite the plea deal between the Prosecution and Defense which asked for nine to eleven years.52

After establishing that Al Mahdi understood these facts and made a knowing plea after consultation with his legal representatives, the Prosecution presented its evidence and called three witnesses.53,54 The legal representative of the victims and the Defense presented their remarks before the judges on August 24, 2016.55

E. Verdict and Sentence

On September 27, 2016, the ICC Trial Chamber declared Ahmad Al Faqi Al Mahdi guilty of the war crime of attacking historic and religious buildings in Timbuktu.56 The Chamber sentenced him to nine years in prison.57

To determine the nine-year sentence, the Chamber took into consideration the gravity of the crime, Al Mahdi’s culpable conduct, and his individual circumstances.58 The Chamber also considered five mitigating circumstances including Al Mahdi’s admission of guilt, his cooperation with the Prosecution despite potential security implications for his family in Mali, and his initial reluctance to commit the crime.59 The Chamber also noted that, even if inherently grave, crimes against property are generally of less gravity than crimes against persons.60

III. Methodology

A. Selection of Al Mahdi Case

This comment uses The Prosecutor v. Ahmad Al Faqi Al Mahdi as a case study to measure international media bias towards the OTP and ICC. The Al Mahdi case was selected for various reasons. The case is the most recent guilty verdict and successful prosecution of a war crime by the ICC. Therefore, it was more likely that material would available online for this case study. The Al Mahdi case was also a prosecution that did not involve an extensive trial. This would minimize the amount of variables that could affect the publications regarding the case. The articles written about the Al Mahdi case would be more focused on the ICC’s processes and the subject of the prosecution, rather than on the fairness or procedure of a trial.

B. Conception Framework for Measuring Media Bias

The conception framework for measuring media bias in this case study was developed from a combination of factors that were derived from the literature review and the OTP’s 2016–2018 Strategic Plan. From the initial literature review of news articles relating to the Al Mahdi case, it was clear that the three major themes most writers covered in their articles was the deterrent effect of the case, the proper priority of this case in relation to other court cases, and whether justice was truly delivered in this case. The last point fit neatly into a category the OTP recognized in its 2016–2018 Strategy Plan as important in shaping perceptions regarding the court: “Whether justice is seen to be done.”

The OTP also hypothesized that people’s views of the OTP’s professionalism, independence, impartiality, and objectiveness, would heavily impact their general view of the OTP. The OTP’s strategic factors and the literature review themes were combined to create a total of six “perception factors” that likely impact perception of the OTP: (1) deterrence; (2) priority; (3) justice; (4) professionalism; (5) independence; and (6) impartiality/objectivity. Whether the world news media included phrases relating to one of these six perception factors in a positive or negative context, or simply ignored it completely, was the basis for measuring media bias in this case study.

C. Units of Measurements

1. Dependent Variable: “News Presentation”

There were three potential units of measurement to measure media bias: numbers of news articles published, numbers of sentences published, and “news presentation.”

i. Reasons for rejecting numbers of news articles as the unit of measurement for media bias

Media bias could be measured by counting and classifying the number of news articles published into categories like positive, neutral, and negative. The issue that comes up with using this unit of measurement is that many news articles contain both positive and negative sentences. This means that news articles as a unit of measure would also have to include a fourth category, like mixed news articles, one news article might be counted twice, as both a positive and negative news article, or news articles would have to be counted as positive or negative through a determination of whether the news article was mostly positive or negative.

The problem with the creation of a fourth category like mixed news articles is that it does not help provide information regarding the actual state of media bias. Although it could be inferred that a mixed article means that the country has a balanced presentation of different viewpoints regarding the ICC, that is not necessarily true because a mixed article could theoretically contain one negative sentence and the remainder could be positive. Also, one of the goals of this comment is to help show media bias because of the common sense link between media bias and people’s actual perceptions.61 Categories like positive, neutral, and negative would help facilitate a better understanding how media bias affects people’s perceptions because the basic hypothesis would be that people would tend to follow the skew of their media. A mixed category would not as easily help determine how media bias may affect people’s perceptions because it is not on the logical sliding scale as the other three categories. Mixed media bias would require a closer look at the balance between the positive and negative statements in the articles to get a better sense of how it affects the public, and in even doing that, it may not be clear how the interaction of positive and negative statements in one article may affect other’s views.

The alternative to avoid the issues with a fourth category of mixed media bias is to count one mixed news article as both positive and negative. The first problem with this approach is that then it would be a misnomer to state that the unit of measurement is number of published news articles. The second problem with this approach is that then solely positive or negative articles are under counted. A mixed article would count twice, while positive and negative articles would only be counted once. The third problem with this approach appears when trying to show how media affects people’s perceptions. Solely positive and negative news article could have a clear affect on people’s perceptions. To include in mixed media as equivalent as each news article would assume that the mix of positive and negative information within one article has no affect.

A second alternative then would be to count mixed news articles as either only positive or negative through a determination of whether the news article was mostly positive or negative. This, however, brings up bigger issues with regards as to how to categorize an articles as mostly positive or negative. It could be that each sentence would be categorized as positive, neutral, or negative, and then the totals for each news article are added up to determine a majority skew. The problem with coding each sentence is that it would be very time consuming and also the result would likely be that every news article would end up being majority neutral. Also, imagine if one sentence in the news article was very negative towards the ICC, but then the news article contained two barely positive sentences. Under this approach the news article would be categorized as positive, despite the likely result that people would start forming a negative perception of the ICC after reading the article.

Due to the issues relating to counting mixed media articles, the numbers of articles published was rejected as the unit of measurement for media bias.

ii. Reasons for rejecting numbers of sentences published as the unit of measurement for media bias

The second potential unit of measurement for media bias was counting and categorizing the sentences published in each news article. This unit was rejected because it would be very time consuming. The other issue with this unit of measurement is that sometimes sentences could convey both a positive and negative sentiment. The issues arising with how to categorize these mixed sentences would be the same as the issue arising with how to categorized mixed articles if the unit of measurement was number of published news articles.

iii. Reasons for using news presentation as the unit of measurement for media bias

The unit of measurement this comment uses to measure media bias is called “news presentation.” This comment uses news presentation as a technical term. News presentation is shorthand for the counting and categorization of the presentation of ideas within a news article. News presentation is a unit of measurement where the amounts of times a news article introduced an idea relating to the six perception factors would be counted and categorized as either positive or negative. For example, if a news article mentioned that the court had done justice in this case but that it was not a priority, that article would count as one positive news presentation based on the justice factor and one negative news presentation based on the priority factor. It is important to note that the measure was the introduction of ideas, and not how many times that idea was mentioned throughout the article.62 Otherwise, this would be similar to simply codifying each sentence. Under this unit of measurement, it was theoretically possible for one news article to count as six positive “news presentations” because of six positive perception factor mentions and six negative “news presentations” for six negative perception factor mentions.

If a news article did not introduce any positive or negative ideas regarding the six perception factors, then that article was counted as one neutral “news presentation.” This would mean that positive and negative news articles could have a higher value compared to neutral news articles. However, this is not a big concern because by using news presentation as a measure, it gets to a more core measure of how articles might affect people’s perceptions. For example, if one article has multiple positive news presentations, then it is more likely that a person reading this article will start forming a stronger positive perception of the ICC, than compared to reading a news article with only one positive presentation.

2. Independent Variables

Multiple independent variables were proposed as potential explanations for positive, neutral, or negative news presentations in the international media. This study was able to measure how the following independent variables could affect or correlate with the presentation of information in the world’s news articles:

i. Case Timeline

The first variable that was established was the timeline of the case. The descriptions regarding the Al Mahdi case could change as the case unfolded. Thus, this study categorized news articles into three separate timespans based on significant developments in the Al Mahdi case. The first timespan (“Time 1”) starts on September 18, 2015—the day the ICC issued an arrest warrant for Al Mahdi. Time 1 includes the events that occurred in quick succession during September 2015, including the transfer of Al Mahdi to ICC custody and his first court appearance. The second timespan (“Time 2”) starts on March 24, 2016—the day the ICC had its preliminary hearing for the case and when it was first reported that Al Mahdi might plead guilty to the charges. Time 2 also includes the week-long trial that happened on August 22–24, 2016, where Al Mahdi did plead guilty to the charges. The third timespan (“Time 3”) starts on September 27, 2016—the day the verdict and nine-year sentence were announced by Chambers. Time 3 spans all the way to the present of when data collection began on November 22, 2016.

ii. Government Structures

The second variable was the government structure of the different countries. A 2015 study by Matthew A. Baum of Harvard Kennedy School and Yuri M. Zhukov of the University of Michigan found that the difference between democratic and authoritarian governments affected the way the media in that country reported on international armed conflicts.63,64 Similarly, a country’s government may affect the way the media in that country reports about the ICC and OTP. This study used the Democracy Index compiled by the UK based Economist Intelligence Unit as a way to categorize the government structure of different countries.65 The Democracy Index categorizes countries as being a (1) full democracy; (2) flawed democracy; (3) hybrid regimes; or (4) authoritarian.66

iii. Muslim-Majority Nations

The third variable was whether a country had a majority Muslim population. The Al Mahdi case represented the first Muslim person to be prosecuted by the OTP. A country with a Muslim majority population could potentially portray the case differently than a Muslim minority country. This study, therefore, separated the two countries on a simple majority. If a country had a Muslim population of 50% of more, then it was a Muslim majority country, and vice-versa. The percentage of Muslim population in one country was based on continually updated World Factbook compiled by the United States Central Intelligence Agency.67

iv. ICC States Parties

The fourth variable was whether a country was a state party to the Rome Statute. Countries that were states parties at the time could have reacted differently to the countries that were not states parties, especially in terms of the deterrent effect of the case. Thus, this study separated countries into states parties and non-states parties at the time of the verdict announcement on September 27, 2016.68 Countries that were signatories, but had not ratified the Rome Statute were considered to be non-states parties.

v. Africa Bias

The fifth variable was whether a country was from Africa or not. Since the ICC’s inception, it has been accused of being biased against African countries.69 The issue has become more prominent since Burundi, South Africa, and Gambia announced their intentions to withdraw from the ICC.70 African countries could therefore have reported more negatively on the Al Mahdi case to reinforce negative views it had regarding the ICC. The Al Mahdi case, however, could also serve as a counter point to the perception of ICC’s Africa bias because the cooperation of two African nations, Mali and Niger, was necessary to prosecute Al Mahdi. Thus, the articles were also separated by geographic lines between African countries and non-African countries.

D. Coding Lexis Newspaper Database

In order to collect data on media bias in relation to the Al Mahdi case, news articles from Lexis’ Newspaper Database71 were coded to transform qualitative information into quantitative information. Coding is the process of counting the amount of times qualitative information falls into a distinct category. Prior studies have proposed coding as a method of measuring media bias.72

In order to retrieve the relevant news articles, each country was individually searched using a broad terms-and-connectors script.73 The broad, initial script ensured that news articles in English and French would appear in the results. At the same time, the initial script excluded irrelevant news articles that appeared often in the initial literature review like stories relating to Sudanese president Sadiq Al-Mahdi.

Each news article that resulted from the initial search was read and whether an article introduced a positive or negative idea relating to the perception factors was recorded. If an article included more than one positive or negative phrase relating to the same perception factor, then those additional mentions were not counted. If an article did not mention anything positive or negative, then that article would be categorized as neutral.

A news article relating to the Al Mahdi case would introduce a positive idea about the case if it included a sentence or phrase that talked about one of the six perception factors in a positive light. For example, an article with the phrase, “The first ICC prosecution solely for tearing down monuments will deter other wreckers, such as the Islamic State of Iraq and the Levant (ISIL) group,” would be categorized as a positive mention in the article because it fits under the first perception factor of deterrence. Phrases in articles with synonymous meanings were also counted as a positive inclusion. For example, and article with the phrase, “Archaeologists hope, in light of the prevalent war on art, that the trial will send a hard-hitting message to groups that wrecking culturally cherished artefacts will not go unpunished,” would also be categorized as one positive mention for the same reason. For countries with large amounts of news articles, a second, more narrow script was created that could be used to “focus” search the articles in order to highlight key terms relating to the perception factors. These terms are included in Amendment 1 and demonstrate the different synonyms that were accepted as indicators of the six perception factors.

A news article relating to the Al Mahdi case would include a negative phrase if it mentioned the case in a negative context under one of the six perception factors. For example, an article that introduced the idea that the Al Mahdi case would have little deterrent effect would count as one negative news presentation because it was a negative idea relating to the deterrent perception factor. Another example would be an article that argued Al Mahdi should have been charged more harshly would be categorized as one negative mention in an article under the justice perception factor.

An article that did not include any phrase relating to the six perception factors was categorized as a neutral article. Usually, neutral articles would be shorter articles with little detail about the case.

E. Regression Analysis

1. Hypothesis developed for regression

The aim of this comment was to measure the media bias of each country and try to determine how different aspects of each country might affect or correlate that country’s media bias regarding the reports published about the Al Mahdi case. As explained in the methodology section, the news presentations of each country was categorized as positive, neutral, or negative. Before using regression to compare the different country’s characteristics, a hypothesis for how independent variable might affect the news presentations was developed.

My first hypothesis is that as time progressed, the reports about the case would become more polarized, meaning the reports would become more positive and more negative and less neutral. The reason for this hypothesis was that countries would likely form stronger opinions regarding the effects and outcome of the case as it progressed. For example, some countries would be positive that a guilty verdict was reached, while other countries may be more negative after it was announced that the sentence would be nine years instead of the maximum of 30 years.

My second hypothesis is that democratic government would be more positive or negative than authoritarian governments. In other words, a full democracy would be less neutral than an authoritarian government. The reason for this hypothesis was that under democratic governments, media corporations tend to have more editorial freedom.74 This would mean that news articles could contain more diverse opinions about the ICC and the Al Mahdi case compared to the news outlets in authoritarian regimes.

My third hypothesis is that Muslim countries would report the case more negatively or neutrally than non-Muslim countries. The Al Mahdi case represented the first time a Muslim man was prosecuted by the ICC. Muslim majority nations, similarly to African nations, could react more negatively to this prosecution by claiming this was a form of western suppression.

My fourth hypothesis is that ICC state parties would report the case more positively than non-state parties. The simple logic behind this hypothesis is that the very fact countries are states parties means they are supportive of the ICC’s efforts. Therefore, states parties are more likely to see the Al Mahdi case positively because it resulted in a rare guilty verdict.

My last hypothesis is that African countries would be more neutral or negative in their reports of the case, compared to Non-African countries. The Africa bias issue that has plagued the ICC was the reason for this hypothesis. Many African countries are supportive of the ICC. For example, Niger in the Al Mahdi case cooperated with the ICC by transferring Al Mahdi to ICC custody. However, the Africa bias issue has always caught constant negative criticism in media and therefore the hypothesis is that this may have permeated onto other coverage regarding the ICC.

2. Regressions

For the first two hypotheses, a logistical regression or logit model was used to determine how time and governance structure correlated with the polarization of media bias (moving away from neutrality and towards a more positive and negative news presentation). The logit model was selected because the first two hypotheses dealt with dichotomous outcome (whether the news presentations were more or less neutral). In the logit model, the log odds of the outcome were modeled as a linear combination of the predictor variables. After time and government structure were processed individually, the two variables were compiled into one logit model to ensure that the results would remain consistent and determine whether the statistical significance would vary at all.

For the three remaining hypotheses, an ordered logistical regression or ordered logit model was used to determine how much explanatory power the country’s characteristics as being Muslim, an ICC states party, and African, had on the positive, neutral, or negative news presentation. The ordered logit model was selected because these hypotheses dealt with ordered discrete categorical variables. Our response variable, news presentation, was treated as ordinal under the assumption that the levels of news presentation status have a natural ordering (high to low), but the distances between adjacent levels are unknown. One important thing to note is that for the ordered logit model the values for the news presentations were positive = 1, neutral = 2, and negative = 3. Therefore, the higher the coefficient in the ordered logit model, the more media bias was skewed towards negative. After the variables of being Muslim, states parties, and African were processed individually, the three variables were inputted into one ordered logit model to ensure that the results would remain consistent and determine whether the statistical significance would vary at all.

F. Methodology Challenges

The single biggest challenge to this case study is the language barrier. News articles were coded in English and French, the national languages of the ICC. However, other languages were excluded. For example, Germany’s news articles were mostly excluded because they were in German. The language barrier likely means that Western media influence is more heavily represented than other nations’ media. This is an unfortunate yet unavoidable issue.

Western media may be over represented in the study also because the Lexis database may not contain the widest array of international newspaper. Although the Lexis database contains 119 countries, many of these countries consist of few newspapers that are archived by the database. In some cases, like Estonia, the single newspaper for that country is a European wide circulation of the BBC. These types of wide ranging new sources were excluded if it did not have a specific, targeted message to one country, because then the measure of a single country’s media bias would be distorted by media from other countries and publishers.

The other issue with this study is the lack of controlling variables. There are many variables besides the ones identified in the hypotheses, like a country’s media norms, the effect of libel laws on news publications, and incentive to write eye-catching stories to name a few, that were not measured in this case. These variables were not controlled for in the regression analysis.

IV. Findings

A. News Publications by Country

A total of 40 countries, out of a potential 119 countries in the Lexis Newspaper Database, had at least one news article about the Al Mahdi case. A majority of the articles found came from large western-influenced countries like Australia, Canada, France, United Kingdom, and United States of America. The two notable examples of non-western countries with large amounts of news coverage of the Al Mahdi case are Pakistan and India.

Table 1. National News Presentations
Countries	Positive	Neutral	Negative
Australia	24	20	1
Bangladesh	0	3	0
Canada	45	6	10
China	9	5	2
Czech Republic	0	1	0
Denmark	1	0	0
Egypt	0	1	0
France	48	73	41
Greece	0	1	0
Hong Kong	10	1	2
India	25	20	3
Iran	1	0	0
Ireland	5	8	2
Israel	0	3	1
Italy	0	1	2
Jordan	2	7	4
Kenya	2	3	1
Lebanon	1	1	0
Malaysia	0	2	1
Mexico	0	0	1
Morocco	0	1	0
Netherlands	8	14	3
New Zealand	0	5	3
Nigeria	1	0	0
Oman	1	0	0
Pakistan	44	26	5
Philippines	2	1	1
Portugal	0	1	0
Russia	2	1	0
Saudi Arabia	2	1	0
Slovakia	0	1	0
South Africa	10	13	6
South Korea	1	0	1
Spain	0	7	0
Switzerland	3	40	3
Thailand	3	3	2
Tunisia	0	1	0
United Arab Emirates	1	0	0
United Kingdom	57	164	15
United States of America	49	48	11
Total	357	483	121

B. Media Bias Relating to The Perception Factors

50.26% of the total news articles were neutral.

There was a total of 357 positive news presentations relating to the perception factors within the news articles. A majority of the positive mentions in news articles related to the potential deterrent effect of the Al Mahdi case. 228 news presentations, or 68.87% of total positive news presentations, mentioned that the Al Mahdi case would have a positive deterrent effect against similar actors like ISIL. The second most common theme in positive news presentations was the justice factor. 102 news presentations, or 28.57% of total positive news presentations, mentioned that justice was done or that the Al Mahdi case was a positive step towards establishing accountability for the actions in Mali. The other four factors accounted for the remaining 2.56% of positive presentations in articles.

A total of 121 negative news presentations relating to the perception factors were found within the news articles. The biggest negative theme in news presentations related to the justice factor. 78 news presentations, or 64.46% of total negative news presentations, mentioned that the Al Mahdi case was a disappointment because the case did not provide complete justice to the people of Mali. These articles argue that Al Mahdi should have been charged for committing and facilitating murder, enforced disappearances, rape and other sexual violence committed by Ansar Dine and AQIM while he was in charge of the Hesbah. 22 news presentations, or 18.18% of total negative news presentations, mentioned that the Al Mahdi case would not have a deterrent effect. These articles focused mainly on the fact that Syria and Iraq were not states parties to the Rome Statute and therefore the ability of the OTP to prosecute ISIL for the destruction of cultural sites in Aleppo and Palmyra was severely limited. 20 news presentations, or 16.53% of total negative news presentations, mentioned that the OTP was not exercising proper judgment in prioritizing this case over other issues facing the ICC. The negative priority news presentations also argued that prosecuting the Al Mahdi case weakened the importance of the ICC as a center for prosecuting the most heinous of crimes against humanity. There was only one other negative news presentation, from Malaysia, that cast a negative light on the professionalism of the ICC by stating, “Cultural destruction, unfortunately, was not clearly defined in the court documents in The Hague.”

C. News Presentations Over Time

As time went on, the articles became relatively more positive and less neutral when looking at a simple bivariate relationship. The percentage of negative articles remained relatively the same over time.

Table 2. Difference in News Presentation Over Time
Case Timeline	Positive	Neutral	Negative	Total
Time 1	46	113	30	189
Time 2	139	261	45	445
Time 3	172	109	46	327

A total of 189 articles were published in Time 1; the time between the ICC’s arrest warrant of Al Mahdi was announced and the day before Al Mahdi was reportedly going to plead guilty. Time 1 includes the events that occurred in quick succession during September 2015, including the transfer of Al Mahdi to ICC custody and his first court appearance. During Time 1, a majority of news articles were neutral. 59.79% of news presentations were neutral, 24.34% of news presentations were positive, and 15.87% of news presentations were negative.

A total of 445 articles were published in Time 2; the time between the first preliminary hearing for the case when it was reported that Al Mahdi might plead guilty to the charges and the day before the nine-year prison sentence was announced. Time 2 also includes the week-long trial that happened on August 22–24, 2016, where Al Mahdi did plead guilty to the charges. During Time 2, a majority of news presentations were also neutral. 58.65% of news presentations were neutral, 31.24% of news presentations were positive, and 10.11% of news presentations were negative.

A total of 327 articles were published in Time 3; the time between the announcement of the verdict and nine-year sentence and the day data collection began on November 22, 2016. During Time 3, a majority of news presentations were positive. 52.60% of news presentations were positive, 33.33% of news presentations were neutral, and 14.07% of news presentations were negative.

The results from the logit model taking time as a variable further confirmed the trend that countries became more polarized as time went on. In order to first run the logit regression, the news presentation had to be divided between neutral (value = 1) and non-neutral (value = 0) news presentations.

Table 3. Separation of News Presentation to Neutral and Non-Neutral
News Presentation	Frequency	Percentage
Non-Neutral (0)	478	49.74
Neutral (1)	483	50.26
Total	961	100.00

The logit model then produced the following results:

Table 4. Logit Model for Correlation Between Time and News Presentation Polarization [75]
Neutrality	Coef.	Std. Err.	z	P>\|z\|	[95% Conf. Interval]
Time 1	—	—	—	—	—	—
Time 2	−.0339977	.1763598	−0.19	0.847	−.3796566	.3116611
Time 3	−1.072132	.1887304	−5.68	0.000	−1.442037	−.702227
Constant	.3835824	.147772	2.60	0.009	.0939546	.6732102

The regression demonstrates that there was a general trend towards decreasing neutrality. The constant demonstrates the expected log-odds of neutrality if time was not used as a predictor variable. Therefore, normally a neutral news presentation would be expected (with a positive value of .384). But, when time is taking into account, the expected log-odds of neutrality decreases by .034 between Time 1 and Time 2; and further decreases by 1.07 between Time 1 and Time 3. This means there was a large spike in polarization after the sentence and verdict were announced in Time 3. The decreasing amount of neutrality between Time 1 and Time 3 is statistically significant (at P>|z| = 0.000). The high statistical significant in polarization between Time 1 and Time 3 serves as strong evidence to support the first hypothesis that countries would become less neutral as the Al Mahdi case progressed.

D. News Presentation Between Different Country Governance Structures

When looking at bivariate relationships, three trends were observed if the news presentations of the Al Mahdi case were analyzed through the lens of country governance structures. The first trend, unsurprisingly, is that more media was available online for democratic countries. The second trend, less intuitively, is that the media bias becomes more positive as the country analyzed is scored as less democratic. The third trend is that general media bias becomes more prominent, meaning the news presentation is less neutral, as countries are scored as less democratic.

Table 5. Difference in News Presentation Between Different Country Governance Structures
Governance Structures	Positive	Neutral	Negative	Total
Full Democracy	192	312	48	552
Flawed Democracy	96	119	59	274
Hybrid Regime	51	37	8	96
Authoritarian	18	15	6	39

552 articles were published by countries categorized as full democracies. 34.78% of the news presentations were positive, 56.52% of the news presentations were neutral, and 8.70% of the news presentations were negative.

274 articles were published by flawed democracies, less than half as many articles as full democracies. 35.04% of the news presentations were positive. The transition between full democracies and flawed democracies hinted at the trend of increasingly positive news presentations. 43.43% of the news presentations were neutral. Neutrality went down by 13.09% between full democracies and flawed democracies. This was the biggest reduction in neutrality between two groups. 21.53% of the news presentations were negative.

96 articles were published by hybrid regimes, around a third as much as flawed democracies. The positive news presentations jumped up to 53.13% and became a majority of the articles published. 38.54% of the news presentations were neutral, and 8.33% of the news presentations were negative.

Authoritarian governments published only 39 articles, around a third as many articles as hybrid regimes. The positive news presentations dipped to 46.15%, still higher than both full or flawed democracies. Neutrality continued to fall, reaching its lowest levels at 38.46% and negative news presentations continued to fluctuate back up to 15.38%.

The logit model for the correlation between neutrality and governance structure also confirmed the patterns observed through the bivariate relationships.

Table 6. Logit Model for Correlation Between Governance Structure and Polarization [76]
Neutrality	Coef.	Std. Err.	z	P>\|z\|	[95% Conf. Interval]
Full Democracy	—	—	—	—	—	—
Flawed Democracy	−.5266659	.1490864	−3.53	0.000	−.81887	−.234462
Hybrid Regime	−.7289838	.2266009	−3.22	0.001	−1.173113	−.284854
Authoritarian	−.7323679	.3401546	−2.15	0.031	−1.399059	−.065677
Constant	.2623643	.0858592	3.06	0.002	.0940834	.4306451

As countries were scored as being less democratic, the countries’ news presentations became less neutral. Flawed democracies were .527 less neutral than full democracies. Hybrid Regimes and Authoritarian governments were .729 and .732 less neutral than full democracies respectively. This increase in polarization between full democracies and every other governance structure was statistically significant.

This is strong evidence against the hypothesis that democratic countries would be less neutral and authoritarian countries would be more neutral. It may be that since authoritarian governments have more control over media production, these countries may be able to better coordinate a single narrative. This evidence shows that this narrative is not neutral however, and may be positive or negative depending on government’s views of the Al Mahdi case and the ICC.

E. Logit Model with Time and Governance Structure

In order to double check the values of the two individual time and governance structure logit models, the two variables were used in the same model to see if any statistical significance changed and how the two variables might interact.

Table 7. Logit Model for Correlation Between Polarization and Time and Governance Structure [77]
Neutrality	Coef.	Std. Err.	z	P>\|z\|	[95% Conf. Interval]
Time 1	—	—	—	—	—	—
Time 2	−.0927473	.1787894	−0.52	0.604	−.4431682	.2576736
Time 3	−1.058905	.1904655	−5.56	0.000	−1.432211	−.6856995
Full Democracy	—	—	—	—	—	—
Flawed Democracy	−.4555369	.1534172	−2.97	0.003	−.7562291	−.1548447
Hybrid Regime	−.5621364	.2351827	−2.39	0.017	−1.023086	−.1011868
Authoritarian	−.70866	.349579	−2.03	0.043	−1.393822	−.0234977
Constant	.6204293	.1624221	3.82	0.000	.3020879	.9387708

Everything that was statistically significant in the two prior models remained statistically significant in the combined model. The time coefficients remained relatively the same. The governance coefficients shifted upwards very slightly. It seems that the timeline of the case explains somewhat better the reduction in news presentation neutrality because the three government coefficients shows that there was now less neutrality reduction between full democracies and the other types of governments.

F. News Presentation Between Muslim Majority and Muslim Minority Countries

The Al Mahdi case was the first time a Muslim was tried in the ICC. At first impression from the bivariate relationships, the Al Mahdi case did not result in any clearly visible division in news presentations between countries with a majority Muslim population and countries with a minority Muslim population.

Table 8. Difference in News Presentation Between Muslim Majority and Minority
Muslim Population	Positive	Neutral	Negative	Total
Muslim Majority	53	43	10	106
Muslim Minority	304	440	111	855

The lack of English or French publications from Muslim majority countries likely limited the useful data for this independent variable. From the 106 news presentations in Muslim majority countries, 50% were positive, 40.57% were neutral, and 9.43% were negative. From the 855 news presentations in Muslim minority countries, 35.56% were positive, 51.64% were neutral, and 12.98% were negative.

To better understand the relationship between Muslim population and news presentation, the information from Table 8 was used to make an ordered logit model.

Table 9. Ordered Logit Model for Correlation Between News Presentation and Muslim Majority Countries [78]
News Presentation	Coef.	Std. Err.	z	P>\|z\|	[95% Conf. Interval]
Muslim Majority	.5571664	.2007754	2.78	0.006	.1636539	.9506788
Cut 1	−.0320557	.1898912	—	—	−.4042357	.3401242
Cut 2	2.444726	.208414	—	—	2.036243	2.85321

As mentioned before in the methodology section, the response variable, news presentation, is treated as ordinal under the assumption that the levels of news presentation status have a natural ordering (positive to negative), but the distances between adjacent levels are unknown. Cut 1 and Cut 2 serves as ancillary parameters for this model, meaning that Cut 1 and Cut 2 are thresholds used to differentiate the adjacent levels of news presentation. For the purpose of this model, news presentation is clearly positive if it is-.03 or lower, and negative if it is 2.44 and above. This provides a compass for interpreting this table, although it is a bit counter-intuitive. If the coefficient is a negative number, then it means that Muslim majority countries have a positive news presentation media bias. If the coefficient is a positive number, then it means that Muslim majority countries have a negative media bias.

Standard interpretation of the ordered logit coefficient is that for a one-unit increase in the predictor (in this case whether the country is Muslim), the response variable level (news presentation) is expected to change by its respective regression coefficient in the ordered log-odds scale while the other variables in the model are held constant. This means that news presentations grows increasingly negative by .56 when a country has a majority Muslim population. This increase in negative news presentation when a country is majority Muslim is statistically significant. This, then, supports the hypothesis that Muslim majority countries would report about the Al Mahdi case and, potentially in extension, the ICC more negatively.

G. News Presentation Between ICC States Parties and Non-States Parties

First impression from the bivariate relationships showed that there were no clear differences between ICC states parties and non-states parties. Out of the 626 news presentations published by states parties, the news presentations were 32.91% positive, 52.56% neutral, and 14.54% negative. Similarly, out of the 335 presentations published by non-states parties, the news presentations were 45.07% positive, 45.95% neutral, and 8.95% negative.

Table 10. Difference in News Presentation Between ICC States Parties and Non-States Parties
ICC States Parties	Positive	Neutral	Negative	Total
States Parties	206	329	91	626
Non-States Parties	151	154	30	335

The ordered logit model provides more useful information regarding the relationship between ICC states parties and news presentation.

Table 11. Ordered Logit Model for Correlation Between News Presentation and States Parties [79]
News Presentation	Coef.	Std. Err.	z	P>\|z\|	[95% Conf. Interval]
ICC States Parties	−.5215395	.1307544	−3.99	0.000	−.7778135	−.2652656
Cut 1	−.7152676	.0827983	—	—	−.8775493	−.5529858
Cut 2	1.777959	.1043912	—	—	1.573356	1.982562

The ICC states parties coefficient demonstrates that countries that are ICC states parties have a positive news presentation media bias in how they reported on the Al Mahdi case. This trend of having a positive news media bias was statistically significant. Thus, supporting the hypothesis that countries that are ICC states parties will report more positively on ICC cases because they intrinsically support the mission of the Court.

H. News Presentation Between African and Non-African Countries

There were no clear differences between African and Non-African countries. Out of the 39 news presentation by African countries, the presentations were 33.33% positive, 48.71% neutral, and 17.95% negative. Similarly, out of the 922 presentations published by non-states parties, the news presentations were 37.31% positive, 50.32% neutral, and 12.36% negative. There was no more than a 5.59% difference in the media bias measures between African and Non-African countries.

Table 12. Difference in News Presentation Between African and Non-African Countries
News Presentation	Positive	Neutral	Negative	Total
African	13	19	7	39
Non-African	344	464	114	922

Unfortunately, the ordered logit model for African countries does not provide further insights as well.

Table 13. Ordered Logit Model for Correlation Between News Presentation and African Countries [80]
News Presentation	Coef.	Std. Err.	z	P>\|z\|	[95% Conf. Interval]
African Countries	−.2632453	.3175755	−0.83	0.407	−.8856818	.3591913
Cut 1	−.7790708	.3129516	—	—	−1.392445	−.1656969
Cut 2	1.685773	.3183466	—	—	1.061825	2.309721

The coefficient would seem to suggest that African countries have a positive news presentation media bias. However, this coefficient is not statistically significant. The small sample size of African countries’ news presentations likely created this result. Therefore, the hypothesis as to whether African countries would have a negative media bias against the court is inclusive, and if anything rebutted by the ordered logit model.

I. Ordered Logit Model with Muslim, ICC States Parties, and African Variables Combined

The ordered discrete categorical variables were combined into one ordered logit model in order to double check the validity of the previous models to see if any statistical significance changed and how the two variables might interact.

Table 14. Ordered Logit Model for Correlation Between News Presentation and Muslim Countries, ICC States Parties, and African Countries [81]
News Presentation	Coef.	Std. Err.	z	P>\|z\|	[95% Conf. Interval]
Muslim Majority	.3163451	.2148801	1.47	0.141	−.1048121	.7375023
ICC States Parties	−.4413296	.1407542	−3.14	0.002	−.7172027	−.1654565
African Countries	−.1552474	.3217726	−0.48	0.629	−.7859102	.4754154
Cut 1	−.5552214	.3698602	—	—	−1.280134	.1696913
Cut 2	1.941364	.3757532	—	—	1.204901	2.677827

The combined ordered logit model shows that the Muslim majority coefficient, that was previously statistically significant, is no longer statistically significant. It is possible that the interaction between the ICC states parties variable and the Muslim variable might have led to this result. It is unclear how the interaction between these two variables lead to this result. Future research may be able to shed light on this.

V. Conclusions

This comment proposes coding news presentations as an ideal method that could be used in the future to quantify and measure international media bias. Although news presentations do not escape for some issues that plague other units of measurement, news presentations best reduce the issues associated with coding news articles while still being practical unlike coding sentences published. News presentations also serves as a stronger core measure of how media bias may affect people’s perceptions by focusing on the number of ideas introduced as the central measure of media bias.

This comment then shows how news presentations can be measured and applied by using the international reaction to the ICC’s latest guilty verdict in The Prosecutor v. Ahmad Al Faqi Al Mahdi as a case study to determine whether international media biases exist and test hypotheses about how the case’s timeline and countries’ characteristics may affect media bias. Looking at the raw numbers of news presentations, each country seemed to exhibit some type of media bias. A few countries had entirely neutral news presentations, but these few countries only had one news presentation. Thus, in order to determine how the case’s timeline and countries’ characteristics may affect media bias, this comment looked at bivariate relationships and created logit and ordered logit models for five independent variables.

The hypothesis that as time progressed news presentations would become more polarized, meaning more positive and negative, and less neutral, was confirmed by the bivariate relationship and the logit model. The decrease in neutrality between Time 1 and Time 3 was statistically significant in both the single variable and combined variable logit model. The second hypothesis that democratic countries would be less neutral was debunked. Instead, the bivariate relationship and logit model showed that authoritarian countries would be less neutral. The decrease in neutrality between full democracies and every other type of governance structure was statistically significant in both the single variable and combined variable logit models.

The third hypothesis that Muslim majority countries would report more neutrally or negatively about the Al Mahdi case were inconclusive based on the bivariate relationship and ordered logit models. For the single variable ordered logit model, Muslim majority countries had an overall negative media bias that was statistically significant. However, this statistically significant result disappeared when other variables were introduced into an ordered logit model. The fourth hypothesis that ICC states parties would report the Al Mahdi case more positively was confirmed by the ordered logit models. Both the single variable and combined variables models showed that ICC states parties had an overall positive media bias that was statistically significant. The last hypothesis that African countries would report about the Al Mahdi case more negatively was also inconclusive since no clear trends appeared on the bivariate relationship chart and the ordered logit model was not statistically significant.

These results show that the OTP in the Strategic Plan was right that perceptions are not controlled by the OTP, but are likely affected by outside forces like media bias. The hope now is that the effects for time, governance structure, and being an ICC states party can be controlled for in future studies to establish a better understanding of how the ICC’s operations affect people’s perceptions. In addition, future studies may be able to complete the measures of performance indicators laid out in the Strategic Plan for the Al Mahdi case and pair those results with the results of this case study to then compare with future cases to see if improvements in performance indicators correlate with an increase in positive news presentations.

Table 15. Focus Search Terms & Connectors
Perception Factors	Positive	Neutral	Negative
General	(“welcome” or “welcomes” or “commends” or “commend” or “positive” or “ground-breaking” or “landmark”)
Deterrence	(“deter” or “deterrence” or “deterrent” or “discourage” or “dissuade” or “inhibit” or “repel” or “chill” or “hinder” or “hindrance” or “holdback” or “restrain” or “restraint” or “stop” or “obstruct” or “fetter” or “rein” or “saving the past” or “new step” or “message” or “ISIS” or “ISIL” or “precedent”) and no ((“not” or “no” or “little” or “minimal” or “few” or “ineffective” or “useless” or “nominal” or “negligible” or “unsuccessful” or “fruitless” or “unproductive” or “futile” or “purposeless” or “inefficient” or “inefficacious” or “inadequate” or “feeble” or “inept” or “impotent” or “weak” or “poor” or “scant” or “meager” or “thin” or “small” or “negative” or “oppose” or “dissent” or “harmful” or “damaging” or “unfavorable” or “disadvantageous” or “bad” or “adverse” or “detriment” or “detrimental” or “dismissive”) w/3 (“deter” or “deterrence” or “deterrent” or “threaten” or “discourage” or “dissuade” or “inhibit” or “repel” or “chill” or “hinder” or “hindrance” or “holdback” or “restrain” or “restraint” or “stop” or “obstruct” or “fetter” or “rein” or “saving the past” or “new step” or “message”))	No (“deter” or “deterrence” or “deterrent” or “threaten” or “discourage” or “dissuade” or “inhibit” or “repel” or “chill” or “hinder” or “hindrance” or “holdback” or “restrain” or “restraint” or “stop” or “obstruct” or “fetter” or “rein” or “saving the past” or “new step” or “message”)	((“not” or “no” or “little” or “minimal” or “few” or “ineffective” or “useless” or “nominal” or “negligible” or “unsuccessful” or “fruitless” or “unproductive” or “futile” or “purposeless” or “inefficient” or “inefficacious” or “inadequate” or “feeble” or “inept” or “impotent” or “weak” or “poor” or “scant” or “meager” or “thin” or “small” or “negative” or “oppose” or “dissent” or “harmful” or “damaging” or “unfavorable” or “disadvantageous” or “bad” or “adverse” or “detriment” or “detrimental” or “dismissive”) w/3 (“deter” or “deterrence” or “deterrent” or “threaten” or “discourage” or “dissuade” or “inhibit” or “repel” or “chill” or “hinder” or “hindrance” or “holdback” or “restrain” or “restraint” or “stop” or “obstruct” or “fetter” or “rein” or “saving the past” or “new step” or “message”))
Priority	OR (“inseparable” or “priority” or “arrangement” or “preference” or “antecedence” or “order” or “preeminence” or “prerogative” or “important”) OR ((“correct” or “right” or “appropriate” or “justified” or “right” or “spot-on” or “valid” or “legitimate” or “perfect” or “infallible” or “sound” or “apt” or “suitable” or “acceptable” or “fitting”) w/3 (“priority” or “arrangement” or “preference” or “antecedence” or “order” or “preeminence” or “prerogative” or “important”)) AND NO ((“not” or “no” or “little” or “minimal” or “few” or “ineffective” or “useless” or “nominal” or “negligible” or “unsuccessful” or “fruitless” or “unproductive” or “futile” or “purposeless” or “inefficient” or “inefficacious” or “inadequate” or “feeble” or “inept” or “impotent” or “weak” or “poor” or “scant” or “meager” or “thin” or “small” or “negative” or “oppose” or “dissent” or “harmful” or “damaging” or “unfavorable” or “disadvantageous” or “bad” or “adverse” or “detriment” or “detrimental” or “dismissive”) w/3 (“priority” or “arrangement” or “preference” or “antecedence” or “order” or “preeminence” or “prerogative” or “important”))	And no (“priority” or “arrangement” or “preference” or “antecedence” or “order” or “preeminence” or “prerogative” or “important”)	((“not” or “no” or “little” or “minimal” or “few” or “ineffective” or “useless” or “nominal” or “negligible” or “unsuccessful” or “fruitless” or “unproductive” or “futile” or “purposeless” or “inefficient” or “inefficacious” or “inadequate” or “feeble” or “inept” or “impotent” or “weak” or “poor” or “scant” or “meager” or “thin” or “small” or “negative” or “oppose” or “dissent” or “harmful” or “damaging” or “unfavorable” or “disadvantageous” or “bad” or “adverse” or “detriment” or “detrimental” or “dismissive”) w/3 (“priority” or “arrangement” or “preference” or “antecedence” or “order” or “preeminence” or “prerogative” or “important”))
Professional	OR (“professional” or “professionalism” or “skilled” or “proficient” or “proficiently” or “competent” or “competently” or “able” or “abled” or “top-notch” or “expertly” or “skillful” or “skillfully”) AND NO ((“not” or “no” or “little” or “minimal” or “few” or “ineffective” or “useless” or “nominal” or “negligible” or “unsuccessful” or “fruitless” or “unproductive” or “futile” or “purposeless” or “inefficient” or “inefficacious” or “inadequate” or “feeble” or “inept” or “impotent” or “weak” or “poor” or “scant” or “meager” or “thin” or “small” or “negative” or “oppose” or “dissent” or “harmful” or “damaging” or “unfavorable” or “disadvantageous” or “bad” or “adverse” or “detriment” or “detrimental” or “dismissive”) w/3 (“professional” or “professionalism” or “skilled” or “proficient” or “proficiently” or “competent” or “competently” or “able” or “abled” or “top-notch” or “expertly” or “skillful” or “skillfully”))	And no (“professional” or “professionalism” or “skilled” or “proficient” or “proficiently” or “competent” or “competently” or “able” or “abled” or “top-notch” or “expertly” or “skillful” or “skillfully”)	((“not” or “no” or “little” or “minimal” or “few” or “ineffective” or “useless” or “nominal” or “negligible” or “unsuccessful” or “fruitless” or “unproductive” or “futile” or “purposeless” or “inefficient” or “inefficacious” or “inadequate” or “feeble” or “inept” or “impotent” or “weak” or “poor” or “scant” or “meager” or “thin” or “small” or “negative” or “oppose” or “dissent” or “harmful” or “damaging” or “unfavorable” or “disadvantageous” or “bad” or “adverse” or “detriment” or “detrimental” or “dismissive”) w/3 (“professional” or “professionalism” or “skilled” or “proficient” or “proficiently” or “competent” or “competently” or “able” or “abled” or “top-notch” or “expertly” or “skillful” or “skillfully”))
Independence	OR (“Independence” or “independent” or “autonomous” or “free” or “self-determining” or “freestanding” or “self-governed” or “self-governing” or “self-ruling” or “unsupervised” or “nonaligned” or “nonpartisan”) AND NO ((“not” or “no” or “little” or “minimal” or “few” or “ineffective” or “useless” or “nominal” or “negligible” or “unsuccessful” or “fruitless” or “unproductive” or “futile” or “purposeless” or “inefficient” or “inefficacious” or “inadequate” or “feeble” or “inept” or “impotent” or “weak” or “poor” or “scant” or “meager” or “thin” or “small” or “negative” or “oppose” or “dissent” or “harmful” or “damaging” or “unfavorable” or “disadvantageous” or “bad” or “adverse” or “detriment” or “detrimental” or “dismissive”) w/3 (“Independence” or “independent” or “autonomous” or “free” or “self-determining” or “freestanding” or “self-governed” or “self-governing” or “self-ruling” or “unsupervised” or “nonaligned” or “nonpartisan”))	And no (“Independence” or “independent” or “autonomous” or “free” or “self-determining” or “freestanding” or “self-governed” or “self-governing” or “self-ruling” or “unsupervised” or “nonaligned” or “nonpartisan”)	((“not” or “no” or “little” or “minimal” or “few” or “ineffective” or “useless” or “nominal” or “negligible” or “unsuccessful” or “fruitless” or “unproductive” or “futile” or “purposeless” or “inefficient” or “inefficacious” or “inadequate” or “feeble” or “inept” or “impotent” or “weak” or “poor” or “scant” or “meager” or “thin” or “small” or “negative” or “oppose” or “dissent” or “harmful” or “damaging” or “unfavorable” or “disadvantageous” or “bad” or “adverse” or “detriment” or “detrimental” or “dismissive”) w/3 (“Independence” or “independent” or “autonomous” or “free” or “self-determining” or “freestanding” or “self-governed” or “self-governing” or “self-ruling” or “unsupervised” or “nonaligned” or “nonpartisan”))
Impartiality / Objectivity	OR (“impartial” or “equal” or “equitable” or “evenhanded” or “fair” “unbiased” or “unprejudiced” or “neutral” or “square” or “disinterested” or “uninvolved” or “uncommitted” or “detached” or “dispassionate” or “objective” or “objectively” or “objectivity” or “objectiveness” or “nondiscriminatory” or “indisputable” or “undeniable” or “demonstrable” or “provable” or “verifiable” or “neutralism” or “neutrality”) AND NO ((“not” or “no” or “little” or “minimal” or “few” or “ineffective” or “useless” or “nominal” or “negligible” or “unsuccessful” or “fruitless” or “unproductive” or “futile” or “purposeless” or “inefficient” or “inefficacious” or “inadequate” or “feeble” or “inept” or “impotent” or “weak” or “poor” or “scant” or “meager” or “thin” or “small” or “negative” or “oppose” or “dissent” or “harmful” or “damaging” or “unfavorable” or “disadvantageous” or “bad” or “adverse” or “detriment” or “detrimental” or “dismissive”) w/3 (“impartial” or “equal” or “equitable” or “evenhanded” or “fair” “unbiased” or “unprejudiced” or “neutral” or “square” or “disinterested” or “uninvolved” or “uncommitted” or “detached” or “dispassionate” or “objective” or “objectively” or “objectivity” or “objectiveness” or “nondiscriminatory” or “indisputable” or “undeniable” or “demonstrable” or “provable” or “verifiable” or “neutralism” or “neutrality”))	And no (“impartial” or “equal” or “equitable” or “evenhanded” or “fair” “unbiased” or “unprejudiced” or “neutral” or “square” or “disinterested” or “uninvolved” or “uncommitted” or “detached” or “dispassionate” or “objective” or “objectively” or “objectivity” or “objectiveness” or “nondiscriminatory” or “indisputable” or “undeniable” or “demonstrable” or “provable” or “verifiable” or “neutralism” or “neutrality”)	((“not” or “no” or “little” or “minimal” or “few” or “ineffective” or “useless” or “nominal” or “negligible” or “unsuccessful” or “fruitless” or “unproductive” or “futile” or “purposeless” or “inefficient” or “inefficacious” or “inadequate” or “feeble” or “inept” or “impotent” or “weak” or “poor” or “scant” or “meager” or “thin” or “small” or “negative” or “oppose” or “dissent” or “harmful” or “damaging” or “unfavorable” or “disadvantageous” or “bad” or “adverse” or “detriment” or “detrimental” or “dismissive”) w/3 (“impartial” or “equal” or “equitable” or “evenhanded” or “fair” “unbiased” or “unprejudiced” or “neutral” or “square” or “disinterested” or “uninvolved” or “uncommitted” or “detached” or “dispassionate” or “objective” or “objectively” or “objectivity” or “objectiveness” or “nondiscriminatory” or “indisputable” or “undeniable” or “demonstrable” or “provable” or “verifiable” or “neutralism” or “neutrality”))
Justice	OR (“justice” or “just” “equitability” or “equitableness” or “evenhandedness” or “fair-mindedness” or “fairness” or “impartiality” or “goodness” or “righteousness” or “uprightness” or “accountable” or “accountability”) AND NO ((“not” or “no” or “little” or “minimal” or “few” or “ineffective” or “useless” or “nominal” or “negligible” or “unsuccessful” or “fruitless” or “unproductive” or “futile” or “purposeless” or “inefficient” or “inefficacious” or “inadequate” or “feeble” or “inept” or “impotent” or “weak” or “poor” or “scant” or “meager” or “thin” or “small” or “negative” or “oppose” or “dissent” or “harmful” or “damaging” or “unfavorable” or “disadvantageous” or “bad” or “adverse” or “detriment” or “detrimental” or “dismissive”) w/3 (“justice” or “just” “equitability” or “equitableness” or “evenhandedness” or “fair-mindedness” or “fairness” or “impartiality” or “goodness” or “righteousness” or “uprightness”))	And no (“justice” or “just” “equitability” or “equitableness” or “evenhandedness” or “fair-mindedness” or “fairness” or “impartiality” or “goodness” or “righteousness” or “uprightness”)	((“not” or “no” or “little” or “minimal” or “few” or “ineffective” or “useless” or “nominal” or “negligible” or “unsuccessful” or “fruitless” or “unproductive” or “futile” or “purposeless” or “inefficient” or “inefficacious” or “inadequate” or “feeble” or “inept” or “impotent” or “weak” or “poor” or “scant” or “meager” or “thin” or “small” or “negative” or “oppose” or “dissent” or “harmful” or “damaging” or “unfavorable” or “disadvantageous” or “bad” or “adverse” or “detriment” or “detrimental” or “dismissive”) w/3 (“justice” or “just” “equitability” or “equitableness” or “evenhandedness” or “fair-mindedness” or “fairness” or “impartiality” or “goodness” or “righteousness” or “uprightness”))

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
International Criminal Court, Report of the Court on the Development of Performance Indicators for the International Criminal Court (Nov. 12, 2015), available online, archived. ↩
2.
Id. at 1–6. ↩
3.
Id. at 7. ↩
4.
Office of the Prosecutor, International Criminal Court, Office of the Prosecutor: Strategic Plan 2016–2018, ICC-ASP/14/22 (Aug. 21, 2015), available online ↩
5.
Id. at 23. ↩
6.
Id. at 24. ↩
7.
Id. at 23. ↩
8.
Id. ↩
9.
Id. ↩
10.
Id. ↩
11.
Id. ↩
12.
See Catherine Happer & Greg Philo, The Role of the Media in the Construction of Public Belief and Social Change, 1 J. Soc. Pol. Psych. 321 (Dec. 16, 2013), available online. ↩
13.
See Connie L. McNeely, Perceptions of the Criminal Justice System: Television Imagery and Public Knowledge in the United States, 3 JCJPC 1 (1995), available online. ↩
14.
See Kenneth Dowler, Media Consumption and Public Attitudes Toward Crime And Justice: The Relationship Between Fear of Crime, Punitive Attitudes, and Perceived Police Effectiveness, 10 JCJPC 109 (2003), available online. ↩
15.
See Robert J. Gebotys, Julian V. Roberts & Bikram DasGupta, News Media Use and Public Perceptions of Crime Seriousness, 30 Canadian J. Criminology 3, 16 (Jan. 1988), NCJRS paywall HeinOnline paywall. ↩
16.
Mali: Situation in the Republic of Mali, ICC-01/12, ICC, available online (last visited Jul. 22, 2017). ↩
17.
Emanuele del Rosso, Why is the Mali Situation at the ICC?, Just. Hub (Dec. 2, 2015), available online. ↩
18.
Press Release, ICC, ICC Trial Chamber VIII Declares Mr Al Mahdi Guilty of the War Crime of Attacking Historic and Religious Buildings in Timbuktu and Sentences Him to Nine Years’ Imprisonment, PR1242 (Sep. 27, 2016), [hereinafter Al Mahdi Guilty], available online. ↩
19.
Id. ↩
20.
International Criminal Court, Case Information Sheet: The Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15 (Oct. 7, 2016), available online (last visited Jul. 22, 2017). ↩
21.
Al Mahdi Guilty, supra note 18. ↩
22.
Id. ↩
23.
Id. ↩
24.
Id. ↩
25.
Id. ↩
26.
Id. ↩
27.
Id. ↩
28.
Id. ↩
29.
Id. ↩
30.
Id. ↩
31.
Id. ↩
32.
United Nations Security Council, Security Council Authorizes Deployment of African-Led International Support Mission in Mali for Initial Year-Long Period, SC/10870 (Dec. 20, 2012), available online. ↩
33.
Hugh Schofield, Mali and France ‘push back Islamists’, BBC News, Jan. 12, 2013, available online. ↩
34.
Press Release, ICC OTP, ICC Prosecutor Opens Investigation into War Crimes in Mali: “The legal requirements have been met. We will investigate”, PR869 (Jan. 16, 2013), available online. ↩
35.
Marlise Simons, Extremist Pleads Guilty in Hague Court to Destroying Cultural Sites in Timbuktu, N.Y. Times, Aug. 22, 2016, available online. ↩
36.
Id. ↩
37.
Marlise Simons, Prison Sentence Over Smashing of Shrines in Timbuktu: 9 Years, N.Y. Times, Sep. 27, 2016, available online. ↩
38.
The Prosecutor v. Ahmad Al Faqi Al Mahdi, Case No. ICC-01/12-01/15, Warrant of Arrest (Sep. 18, 2015) (fr.), available online. ↩
39.
The arrest warrant was first made available to the public on September 28, 2015. ↩
40.
Press Release, ICC, Situation in Mali: Ahmad Al Faqi Al Mahdi Surrendered to the ICC on Charges of War Crimes Regarding the Destruction of Historical and Religious Monuments in Timbuktu, PR1154 (Sep. 26, 2015), available online. ↩
41.
Press Release, ICC, Initial Appearance of Ahmad Al Faqi Al Mahdi Scheduled for 30 September 2015, MA189 (Sep. 28, 2015), available online. ↩
42.
International Criminal Court, Ahmad Al Faqi Al Mahdi Case: Initial Appearance, 30 September 2015, YouTube, at 6:07 (Sep. 30, 2015), available online. ↩
43.
Case Information Sheet, supra note 20. ↩
44.
Id. ↩
45.
International Justice Resource Center, ICC Convicts Al-Mahdi Of War Crime For Destroying Cultural Sites (Oct. 5, 2016), available online. ↩
46.
Al Mahdi Guilty, supra note 18. ↩
47.
Janet Anderson, Mali Jihadist First at ICC, Just. Hub, Aug. 22, 2016, available online. ↩
48.
Case Information Sheet, supra note 20. ↩
49.
Id. ↩
50.
Anderson, supra note 47 ↩
51.
Id. ↩
52.
Id. ↩
53.
The Prosecutor v. Ahmad Al Faqi Al Mahdim, Case No. ICC-01/12-01/15, Judgment and Sentence (Sep. 27, 2016), available online. ↩
54.
Case Information Sheet, supra note 20. ↩
55.
Id. ↩
56.
Judgment and Sentence, supra note 53 ↩
57.
Id. ↩
58.
Al Mahdi Guilty, supra note 18. ↩
59.
Id. ↩
60.
Id. ↩
61.
Happer & Philo, supra note 12; McNeely, supra note 13; Dowler, supra note 14; Gebotys et al., supra note 15. ↩
62.
Although the repetition of positive or negative mentions could help analyze the strength of a country’s media bias, it also had the potential of severely skewing the results. Many countries published articles that essentially re-stated the official opinions of important political figures or NGOs. These statements usually repeated the same phrases multiple times and could have had the effect of overstating the positive nature of news publications. ↩
63.
Matthew A. Baum & Yuri Zhukov, Filtering Revolution: Reporting Bias in International Newspaper Coverage of the Libyan Civil War (Harv. Kennedy Sch. 2014), available online. ↩
64.
John Wihbey, Bias in Reporting of International Conflict and War: Research on the Libyan Civil War, Journalist’s Resources (Mar. 3, 2015), available online (last visited Jul. 22, 2017). ↩
65.
The Economist, Democracy Index 2015: Democracy in an Age of Anxiety (2016), available online. ↩
66.
Id. at 4. ↩
67.
The World Factbook, CIA (2016), available online (last visited Jul. 22, 2017). ↩
68.
The States Parties to the Rome Statute, ICC, available online (last visited Jul. 22, 2017). ↩
69.
The Africa Question, ICC Forum (Mar. 17, 2013), available online. ↩
70.
The Withdrawal Question, ICC Forum (Nov. 15, 2016), available online. ↩
71.
Lexis News & Business Database, Lexis (2016), Lexis/Nexis paywall. ↩
72.
Richard Alan Nelson, Tracking Propaganda to the Source: Tools for Analyzing Media Bias, Global Media J. (Dec. 17, 2013), available online. ↩
73.
The broad, initial terms-and-connectors script was: (“Al Mahdi” or “Al-Mahdi” or “Ahmad Al Faqi Al Mahdi” or “Abu Turab” or “ICC-01/12-01/15”) and (“International Criminal Court” or “ICC” or “Cour Penale Internationale”) and not (“Sadiq” or “Sudiq” or “Sadeq” or “Sudeq” or “Stockly”). ↩
74.
Baum & Zhukov, supra note 63. ↩
75.
Some more information regarding the Logit Model in Table 4:
Number of observations = 961;
LR χ²(2) = 56.69;
Prob > χ² = 0.0000;
Log likelihood = −637.75568;
Pseudo R² = 0.0426. ↩
76.
Some more information regarding the Logit Model in Table 6:
Number of observations = 961;
LR χ²(3) = 21.32;
Prob > χ² = 0.0001;
Log likelihood = −655.44231;
Pseudo R² = 0.0160. ↩
77.
Some more information regarding the Logit Model in Table 7:
Number of observations = 961;
LR χ²(5) = 70.98;
Prob > χ² = 0.0000;
Log likelihood = −630.61315;
Pseudo R² = 0.0533. ↩
78.
Some more information regarding the Logit Model in Table 9:
Number of observations = 961;
LR χ²(1) = 7.79;
Prob > χ² = 0.0053;
Log likelihood = −932.63974;
Pseudo R² = 0.0042. ↩
79.
Some more information regarding the Logit Model in Table 11:
Number of observations = 961;
LR χ²(1) = 16.05;
Prob > χ² = 0.0001;
Log likelihood = −928.50814;
Pseudo R² = 0.0086. ↩
80.
Some more information regarding the Logit Model in Table 13:
Number of observations = 961;
LR χ²(1) = 0.69;
Prob > χ² = 0.4069;
Log likelihood = −936.18904;
Pseudo R² = 0.0004. ↩
81.
Some more information regarding the Logit Model in Table 14:
Number of observations = 961;
LR χ²(1) = 18.40;
Prob > χ² = 0.0004;
Log likelihood = −927.33327;
Pseudo R² = 0.0098. ↩

chrisjlin
6385
August 24, 2017
7:35 am

Prosecutorial Discretion in Investigations: A Balance Between Politicization and Independence

Abstract

I examine the possibility of enforcing a balance between discretion and independence, seeing as how the International Criminal Court (“ICC”) Prosecutor’s decision to investigate a specific country, individual or group is necessarily political, given the ICC’s method of functioning. Despite the occurrence of crimes that merit prosecution, the Prosecutor often must take into consideration the interests of States Parties and other international organizations, such as the North Atlantic Treaty Organization (“NATO”). Because the Prosecutor cannot avoid a degree of politicization, I recommend that the Prosecutor publish additional guidelines, in addition to the Rome Statute and the Rules of Procedure and Evidence (“RPE”), to create a degree of transparency in the decision-making process. In examining this issue, I look towards the controversies in investigations that occurred with the NATO bombings in Yugoslavia, the Rwandan genocide, and the alleged focus on investigating African countries.

I. Introduction

The debate between promoting discretion versus politicization of the Office of the Prosecutor can be understood through the controversies that occurred in the investigations of Yugoslavia, Rwanda, and various African States Parties. In each of the three scenarios, the prosecutors of an international court were perceived to either have failed to investigate serious atrocities or have been overly zealous in targeting a specific group for investigation. When confronted with legal issues that affected the NATO, a humanitarian intervenor, the prosecutor of the International Criminal Tribunal for the former Yugoslavia declined to investigate possible war crimes. Similarly, the prosecutor of the International Criminal Tribunal for Rwanda declined to investigate Tutsi war crimes against the Hutus, because of the fear that the tribunal would lose Tutsi cooperation. Lastly, the International Criminal Court (“ICC”) Prosecutor attempted to move away from investigating African individuals after African States parties complained of an implicit bias in the ICC against African States Parties and threatened to withdraw from the ICC’s jurisdiction.

Given the dispute surrounding prosecutorial discretion, the ICC Prosecutor can create a balance between politicization and independence through publicizing guidelines that create greater transparency into the decision-making process of investigations. Indeed, in addition to using the available guidelines, such as the Rome Statute, the Prosecutor can provide a draft of specific factors to consider, given the ambiguity in the current guidelines. The Prosecutor may also consider additional factors, such as accounting for States Parties’ interests to a degree, to ensure continued legitimacy of the ICC.

Part II begins with a background discussion of prosecutorial controversies present in the NATO intervention in Yugoslavia, the Rwandan genocide, and the persistent scrutiny of African States Parties. Part III provides a possible framework on striking a balance between prosecutorial discretion and a degree of politicization, in which outside parties can influence the Prosecutor’s decisions. Finally, I will conclude the comment with thoughts on relevant prospective research.

II. Conceptual Framework

With respect to the investigations in Yugoslavia, Rwanda, and the African States Parties, the prosecutors of international courts all had to make decisions that involved a degree of politicization, demonstrating that true independence may not be viable within the framework of internationally created courts.

A. Relevant Literature

1. NATO Bombing of Yugoslavia

The International Criminal Tribunal for the former Yugoslavia (“ICTY”) was established to investigate the NATO bombing campaign in Yugoslavia that occurred from March to June of 1999. While NATO’s bombing campaign was supposed to deter Serbian attacks on Albanians in Kosovar, the campaign resulted in numerous civilian casualties and controversy over the types of buildings targeted. Despite establishing a committee to initiate a preliminary investigation, the ICTY prosecutor ultimately declined to investigate the NATO bombings, likely due to the sensitivity involved in prosecuting NATO and the need to resolve complex issues, such as whether third party intervenors in humanitarian missions were bound by international criminal law.

Both Serbs and Albanians claim to have historic ties to Kosovo, and nationalistic sentiments would rise throughout the two World Wars due to shifts in territorial control of the region. Indeed, Kosovo was at the center of the first Serbian state, founded in the early 12th century, and held religious connotations to the Serbs, because the Serbian Orthodox Church’s Patriarchate relocated to the area in 1346.1 Simultaneously, Albanians believe that their ancestors resided in the area before the 6th century, thus predating the Serbs’ arrival.2 During World War I, Serbs consolidated and formed the Kingdom of Serbs, Croats, and Slovenes; the newly combined territories included Kosovo and would later be known as Yugoslavia.3 At this time, Serbs encouraged Albanians to emigrate to Turkey and often expropriated the lands of Albanians residing in Kosovo.4 After World War II, Serbia became one of Yugoslavia’s six federal republics and held control over Kosovo, which maintained a substantial Albanian population.5 As Kosovo eventually became a Socialist Autonomous Province of Yugoslav in 1974, effectively gaining a status equal to the other six republics with respect to economic decision-making and foreign policy, Serbs felt that they were losing control over Kosovo, especially since Albanians constituted the majority of the Kosovo population.6

Serbian nationalism dramatically escalated in the 1980s, culminating in outright conflict between the Serbs and Albanian Kosovars. Slobodan Milosevic, a Serbian politician, called for Serbian reunification with Kosovo and successfully revoked Kosovo’s newfound autonomy through political maneuvering in 1989.7 Thereafter, the Serbs claimed that Kosovo fully reintegrated into Serbia.8 In response to the Serbian assertion of control, a group of Albanian Kosovars established the Kosovo Liberation Army (“KLA”) by mid-1993 to stage guerrilla operations against the Serbs.9 After international intervention and a failed attempt at normalizing relations between the Serbs and Albanians through the Dayton Agreement in 1995, KLA violence against the Serbs in Kosovo continued to intensify.10 The KLA began assassinating Serbian officials in 1997 and 1998, while the Serbs viewed this as an opportunity to enforce order on the insurgent Albanian Kosovars, resulting in the deaths of over 1,500 Albanian Kosovars in 1998 alone.11

After another failed peace conference between the Serbs and Kosovars at Rambouillet in France, due to Serbian rejection of the proposed “Interim Agreement for Peace and Self-Government in Kosovo,” NATO was forced to exercise military force in deterring Serbian actions against Albanian Kosovars.12 From March 24 to June 10, 1999, NATO initiated a bombing campaign in Yugoslavia, which ultimately resulted in 500 civilian deaths and 800 injuries.13 Additionally, the air strikes did not immediately deter Serbian attacks on Albanian Kosovars; during NATO’s intervention, Serbs killed at least 4,400 Albanian Kosovars.14 Another 830,000 civilians fled Kosovo, resulting in the largest exodus of European refugees since World War II.15 Lastly, NATO had at least ninety incidents involving questionable choice of targets and means of attack, including bombing media buildings and the use of cluster bombs in areas of high population density.16

The ICTY initiated a preliminary investigation into the NATO intervention but ultimately declined to proceed with the investigation. In 1999, Louise Arbour, the ICTY prosecutor at the time, established a committee to determine whether to investigate controversial incidents pertaining to NATO’s bombing campaign of Yugoslavia.17 Arbour then refused to conduct an investigation, despite having the power to proceed with an investigation regardless of the committee’s findings.18 If Arbour had proceeded with the investigation, she would have needed to resolve issues such as whether international criminal law governed third party intervenors in humanitarian missions and whether radio stations can be considered military targets.19 Consequently, Arbour likely declined to investigate the bombings as a direct result of the legal and political ramifications NATO would face.20 Indeed, the outcome would likely be different if NATO forces were not the subject of the investigation; for example, the ICTY indicted Serbian leaders in 1995 for the bombing of Sarajevo, which resulted in a number of civilian casualties similar to NATO’s bombing of the Radio-Television Station.21

2. Rwandan Genocide

In 1995, the International Criminal Tribunal for Rwanda (“ICTR”) was established to investigate and prosecute the Hutu genocide of Tutsis in Rwanda, which systematically occurred beginning in April 1994. However, with the Tutsi counterattack, which culminated in the overthrow of the Hutu regime in Rwanda in July 1994, evidence also existed of alleged Tutsi atrocities against Hutus, which included mass executions and assassinations. However, the ICTR’s chief prosecutor declined to investigate possible Tutsi crimes, because he needed Tutsi cooperation in order to prosecute the Hutus, who arguably committed greater atrocities; investigating both sides of the Rwandan genocide would only obstruct the legal process, due to diminished cooperation by both the Tutsis and the Hutus.

While the Tutsis and Hutus in Rwanda always differed in phenotypes, leading to conflict between the two ethnic groups, such conflict was greatly exacerbated due to colonization in the early 20th century. After arriving in Rwanda in 1916, Belgian colonists created classifications of varying ethnic groups using identity cards and considered the Tutsis to be ethnically superior to the Hutus.22 Under Belgian rule, the Tutsis’ job and educational opportunities far surpassed the Hutus’, ultimately resulting in Hutu riots against the Tutsis in 1959, during which over 20,000 Tutsis were killed.23 Conflict between the Hutus and Tutsis continued, even after Rwanda achieved independence from Belgium in 1962, as the Hutus gained power in the absence of the Belgians and framed the Tutsis as scapegoats responsible for issues within the country.24

The deterioration of Rwanda’s economy and subsequent blame on the minority Tutsi population would ultimately lead to Hutu-propagated genocide. Rwanda entered a trade deficit as coffee prices fell beginning in 1986, and the economic crisis was blamed on the Tutsis.25 Simultaneously the Rwandan Patriotic Front (“RPF”), consisting mostly of Tutsi refugees, formed in Uganda; the RPF’s goal was to overthrow Juvenal Habyarimana, the incumbent Hutu president of Rwanda, and return to their homeland.26 In response, the Habyarimana regime framed all Tutsis as allies of the RPF and as enemies of the Rwandan state through systematically spreading anti-Tutsi propaganda.27 The downing of Habyarimana’s plane in April 1994 was the catalyst of the Tutsi massacre, though it remains unclear as to who was responsible for shooting down the aircraft.28 The presidential guard immediately authorized retribution against the Tutsis in the form of mass murders.29 Indeed, civilians were encouraged to take part in the annihilation of Tutsis and were even given incentives, such as land or money, to kill.30 Simultaneously, RPF forces continued their assault on Rwandan governmental forces, allegedly through methods including various assassinations of political figures, mass murders, and killing prisoners of war.31 The RPF finally achieved victory in July 1994 and declared a ceasefire after the Rwandan government collapsed, with Hutu forces stateless and scattered into the Zaire region (modern day Democratic Republic of the Congo).32

The ICTR was tasked with investigating the Rwandan genocide in 1995, though chief prosecutor Richard Goldstone refused to investigate alleged RPF crimes due to a need to preserve the legitimacy of the ICTR through eliciting cooperation from the Tutsi-governed Rwanda. Goldstone declined to investigate the alleged RPF crimes, because he believed that the United Nations Security Council created the ICTR to investigate and prosecute the Hutu genocide of Tutsis.33 Further, Goldstone contended that the ICTR had little, if any, sufficient evidence of the RPF crimes, though, in actuality, concrete evidence did exist from 1994 onwards.34 Goldstone’s decision to abstain from initiating an investigation was likely due to his awareness that Rwanda under the Tutsi rule may cease cooperation with the ICTR if he chose to commence with the investigation.35 By investigating both sides of the Rwandan conflict, Goldstone would likely fail to make progress in prosecutions, because, as subjects of investigations, neither side would have an incentive to cooperate with the ICTR.36 Indeed, when the ICTR finally decided to investigate RPF crimes in December 2000, led by prosecutor Carla Del Ponte, the Rwandan government successfully undermined the investigation and credibility of the ICTR by criticizing the ICTR’s failure to timely prosecute perpetrators of the Tutsi genocide.37

3. African Bias

Given the ICC’s history of investigating and indicting African individuals in the past two decades, many critics of the ICC assert that the Court has an implicit bias against Africans and is simply an extension of Western imperialism. Such accusations have prompted the ICC to attempt to move away from continued prosecution of African crimes and individuals, though serious atrocities are nevertheless investigated. For example, the ICC chief prosecutor called for an investigation of Burundi president Pierre Nkurunziza because of Nkurunziza’s alleged crimes in eliminating political opponents. However, in response to the investigation, Burundi voted to withdraw from the ICC, thus threatening to undermine the ICC’s legitimacy and potentially setting a precedent of countries withdrawing from the Court’s jurisdiction when faced with an adverse investigation.

Since the ICC began operating in 2002, the Court made thirty-one indictments against African individuals, despite how African states only constitute thirty-four out of the one hundred twenty-four States Parties.38 The focus on Africa has partly resulted from the ICC’s jurisdictional limitations; the ICC can only investigate crimes that occurred in or were perpetrated by countries that ratified the Rome Statute, which established the ICC.39 The ICC cannot investigate other countries without a referral by the United Nations Security Council.40 Additionally, the ICC often cannot investigate or prosecute major nonmember countries, such as the United States or China, because of their ability to veto Security Council referrals.41 Consequently, given such limitations, the ICC is often forced scrutinize only African countries, creating a perceived bias against African States Parties. To combat the sentiments of unfairness, ICC prosecutors have already begun moving away from African investigations and prosecuting specific types of war crimes that were typical in atrocities that occurred in Africa.42

In April 2015, Pierre Nkurunziza, Burundi’s incumbent president, planned to run for an unprecedented and unconstitutional third term as president, sparking violent protests within the country.43 After Nkurunziza’s reelection in July 2015, violence continued, with security forces killing approximately 80 protestors and over 170,000 Burundian refugees fleeing the country.44 Prominent political individuals from both the ruling party and the opposition, such as General Adolphe Nshimirimana, the country’s security chief, and Pierre Claver, human rights activist, were killed in attacks that continued through August 2015.45 Numerous political dissidents were detained or executed by the ruling party, and journalists who were critical of the regime became targets as well.46 As the death toll approached 430, with 300,000 displaced Burundians, ICC’s chief prosecutor Fatou Bensouda decided to proceed with an investigation into the events surrounding Nkurunziza’s bid for reelection in April 2015.47 In response to the ICC investigation into possible genocide and crimes against humanity, amongst other alleged crimes, Burundi’s lower house of parliament voted to withdraw from the ICC in October 2016.48 While Bensouda may have a legitimate reason and need to investigate the crimes perpetrated by the ruling party, other African countries and critics view the investigation to be a continuation in the ICC’s bias against African countries, which may lead to more withdrawals by African countries.49

B. Proposed Contribution

Prosecutorial independence is a significant issue for the ICC, because of the contrasting viewpoints regarding independence and politicization. While a degree of politicization is necessary in the decision-making process with respect to investigations, critics of the Court believe that such political undertones within investigations lead to a lack of legitimacy and a view that the ICC is merely a tool for Western powers to exert influence over countries without significant international influence.

The theory of balancing prosecutorial discretion provides the view that the Prosecutor can navigate between independence and politicization to the benefit of the ICC. In addition to using the Rome Statute and the Rules of Procedure and Evidence, the Prosecutor can draft its own guidelines to ensure transparency and uniformity in investigating cases. Additionally, given the inherently political nature of the ICC, the Prosecutor may need to take into account the legal merits of the case and ensure cooperation by considering the interests of outside parties to an extent allowed by goals of promoting international peace.

III. Theory of Balancing Prosecutorial Discretion

At the core of the debate regarding prosecutorial discretion lies the issue in which, the ICC Prosecutor should have discretion in the interest of justice, but simultaneously, an equally valid argument exists that the Prosecutor should maintain true neutrality by declining to consider the interests of outside parties.

A. The Necessity of Politicization

The ICC Prosecutor’s decisions are inherently political based on the establishment of the Court and the interactions between the Office of the Prosecutor and various States Parties. Though States Parties agreed to subject themselves to the Court’s jurisdiction, they can also withdraw support from the Court, thus gaining leverage against the Prosecutor’s selection of crimes to investigate. Importantly, self-referrals and referrals by the United Nations Security Council also constitute the necessity of prosecutorial politicization because of the interplay between soliciting cooperation from States Parties and the aspiration to proceed with impartiality.

The ICC’s legitimacy and continued survival depends largely on its reception within the international community subjected to the ICC’s rulings, which often need to be made based on the sociopolitical nuances within each region of the world. States Parties, nongovernmental organizations, and other international actors are all evaluators of the ICC’s selection of cases and decisions to proceed with investigations.50 With respect to granting the ICC legitimacy, States Parties are particularly relevant, because they can withdraw support from the Court and perhaps even seek the Court’s destruction.51 States Parties are additionally crucial, because, by subjecting themselves to the Court’s jurisdiction through ratifying the Rome Statute, they provide both evidence and defendants to prosecute.52 Indeed, the ICC may also need to take into account regional differences in the process of successfully prosecuting a case. Advocates of the ICC typically believe in the merits of enforcing human rights law based on a universal baseline of legal justice.53 However, critics believe that such universalism ignores regional values and autonomy in resolving domestic issues.54 Notably, African leaders who once supported the ICC now believe that the ICC’s continued focus on investigating crimes in Africa has prohibited African states from resolving such crimes on their own.55

The ICC generally allows self-referrals, which the Court views as a sign of commitment to justice, to initiate investigations; however, the Court has a tendency to grant immunity to the referring party due to concerns of facilitating cooperation.56 In 2003, the ICC accepted Uganda’s self-referral regarding a conflict between the Lord’s Resistance Army (“LRA”) and the Uganda People’s Defense Forces (“UPDF”), the government’s military forces.57 The ICC then indicted five LRA leaders for various crimes, such as rape and using child soldiers.58 However, the ICC’s Office of the Prosecutor has not indicted any individuals within the Ugandan government, which committed similar atrocities.59 Prosecutor Luis Moreno Ocampo contended that UPDF’s crimes were less severe in comparison to LRA’s crimes, despite how the UPDF’s actions of forced population displacement and use of child soldiers clearly violated international law.60 Prosecutors in the ICC appear to grant immunity to the referring party, particularly when their crimes are relatively less severe than the defendants’.61 Though detrimental to its legitimacy, the Court fears that prosecuting the referring party would chill cooperation and impede prosecutorial efficiency.62

Simultaneously, the United Nations Security Council can refer cases to the ICC for investigation, though the two organizations working together presents an image of an assertion of Western political strength against less-powerful states. The Security Council referred Sudan to the ICC in 2005, since the ICC did not have jurisdiction over the country; Sudan did not ratify the Rome Statute to join the ICC as a State Party.63 The ICC subsequently investigated senior politicians, such as President Omar al-Bashir, within the Sudanese regime for perpetrating crimes in Darfur.64 Critics view the ICC and the Security Council as tools that powerful countries use to initiate regime change, under the guise of addressing atrocities including genocide.65 As African countries pushed back against the ICC’s willingness to investigate African regime elites by withdrawing cooperation, the Security Council has been hesitant to pressure the ICC to investigate African atrocities.66

B. The Necessity of Independence

Conversely, prosecutorial independence is necessary based on budgetary restrictions within the ICC as well as an overarching concern for fairness in investigations. Prosecutors should be able to select and determine whether to proceed with investigations without the influence of outside political interests. Further, independent selection is a crucial tool for the Prosecutor to have, because of the limited funds in prosecuting a case. Such independence will lend credibility to the court by ensuring that the Prosecutor is not bound by the interests of any third-party group or institution.

The International Law Commission’s draft treaty, which would later be known as the Rome Statute, provided prosecutors with proprio motu powers, which allowed for broad prosecutorial discretion in initiating investigations.67 During the Rome Statute’s negotiations, nongovernmental organizations and delegates fought to support prosecutorial discretion, because they believed that a prosecutor subordinate to other political institutions would undermine the legitimacy and independence of the ICC.68 The ultimate goal of the ICC is to guarantee that all States Parties are entitled to a fair and impartial tribunal, and that the Prosecutor is not bound by the interests of any outside parties.69

Case investigation under limited budgetary circumstances additionally demonstrate the need for prosecutorial discretion in investigations. In theory, the Prosecutor should not engage in discrimination and selective prosecution under a system in which defendants are equally-bound by international criminal law.70 However, because of the heavy caseload that courts often face, prosecutors with discretion can choose to be selective in their investigations to facilitate efficiency in the legal system.71 Indeed, restraints on resources, logistics, and diplomacy place an immediate limit on the Prosecutor’s ability to investigate all meritorious cases.72 While the Rome Statute calls for the ICC Prosecutor to “investigate incriminating and exonerating circumstances equally,” prosecutorial discretion provides a buffer against the directive to investigate, which likely cannot be achieved given the aforementioned restraints.73 Further, the Prosecutor’s selection of cases are achieved through an application of four factors: scale, nature, manner of commission, and impact of crimes; such malleable factors strengthen the Court’s legitimacy by allowing the Prosecutor to investigate cases based on the interests of justice rather than by a universal standard of Western justice.74 The Prosecutor thus has the power to influence policy and the overall direction of the ICC, based on the ability to selectively screen and investigate crimes.

C. Striking a Balance Between Politicization and Independence

A balanced approach to investigation can entail specific prosecutorial guidelines in addition to the guidelines set forth by the Rome Statute and the Rules of Procedure and Evidence. Moreover, the ICC Prosecutor can consider additional factors, including investigating cases likely to win on legal merits and investigating crimes at all levels of responsibility (e.g., scrutinizing subordinates as well as top-level leaders who committed atrocities under international law).

1. Specificity in Prosecutorial Guidelines

The Rome Statute and the Rules of Procedure and Evidence provides guidance in investigating and prosecuting cases, which frames the Prosecutor’s proprio motu powers.75 Specifically, when initiating investigations, the Prosecutor must consider the interest of justice alongside the gravity of the crime and the victims’ interests. The concept of interest of justice, however, remains elusive and can be construed in a variety of ways, from retributive justice to restorative justice.76 Further, neither the Rome Statute nor the RPE enumerates an exhaustive list of factors to consider when deciding whether to proceed with an investigation.77 To counter the inherent ambiguity in the official guidelines, the Prosecutor may draft and publicize a set of prosecutorial guidelines to be applied to every investigation; for example, the Prosecutor can enumerate the specific factors to be considered when initiating an investigation. The publicized guidelines would consequently provide a level of transparency and uniformity in arriving at a decision.

The Prosecutor can also consider complementarity, in which national courts have priority in prosecuting crimes.78 Under Article 17 of the Rome Statute, the International Criminal Court will assume responsibility to investigate and prosecute based on factors such as an unwillingness of the national court to prosecute; a collapse of the judiciary or unjustified delays all constitute unwillingness or inability to prosecute.79 However, complementarity remains an ambiguous consideration, because the Rome Statute and other guidelines do not provide for a specific guidance or timeline as to when national jurisdiction fails.80 For example, it remains unclear whether a States Party’s promise to investigate a crime can constitute a bar against ICC intervention.81 To resolve this issue, the Prosecutor can, similarly, propose specific criteria to determine whether national courts have truly failed to investigate; such criteria would also involve a determination of whether promises to investigate are sufficient.

2. Additional Considerations

In addition to drafting prosecutorial guidelines and considerations for complementarity, the Prosecutor can account for less tangible issues, such as focusing on cases likely to win on legal merits and facilitating cooperation with States Parties, as needed for investigations.

When choosing to conduct investigations and issue indictments, the ICC Prosecutor should take a reasonable amount of time and focus on crimes that can succeed on legal merits. Rather than serving as a political tool for immediately responding to global atrocities, the Prosecutor should focus on using time to deliberate appropriately and investigate legal grounds for indictment.82 By having an investigation rooted in legal principles, the Court will have a better chance of defending its decisions against critics who contend that the Prosecutor was tainted by outside political interests.83 Further, sufficient investigation will allow the Court to bring a strong case against actors truly responsible for the crimes.84 Indeed, a legally sound decision accomplished through exhaustive deliberation is preferable to an immediate one driven by international outrage calling for punitive measures.

Secondly, the Prosecutor’s responsibility for investigating those responsible for atrocities under international law can focus on both top-level actors as well as subordinates on a secondary level. By casting a broader net to investigate potential indictees, the Prosecutor can minimize the appearance that the Court is simply encouraging regime change based on the preferences of Western powers. Additionally, the Prosecutors are likely able to solicit cooperation from top-level actors when investigating subordinates, while top-level actors may be unwilling to cooperating with an examination of their own possible crimes.85

Lastly, given the ICC’s need for cooperation to function, the Prosecutor should formulate decisions that do not actively oppose the interests of States Parties directly cooperating with the Prosecutor. The ICC itself was ratified by countries that agreed to subject themselves to the jurisdiction of the Court. Moreover, during investigations, the Court requires the cooperation of countries to furnish evidence. By disregarding the interests of the countries involved in the judicial process, countries may refuse to cooperate and, instead, withdraw support from the ICC to hinder the investigations. Indeed, African countries in recent years have already threatened withdrawal due to the belief that the Prosecutor has a bias against Africans, due to the high number of indictments and investigations against African individuals.

IV. Conclusion

This comment explores the possible balance between discretion and politicization in the Office of the Prosecutor. Given the inherently political nature of the ICC, the Prosecutor must be political in its investigations to a certain extent by considering the interests of States Parties and other major world powers to ensure the survival of the ICC. However, the Prosecutor can also promote a degree of independence by publishing more specific guidelines pertaining to complementarity action and factors involving the interests of justice when initiating investigations.

However, the ongoing threats of withdrawals of African States Parties, along with actual withdrawals (i.e., Burundi), may generate a significant change in Prosecutorial discretion in the years to come. Indeed, this comment does not predict the trajectory of Prosecutorial discretion when faced with a lack of support from a significant number of States Parties.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1.
Carole Rogel, Kosovo: Where It All Began, 17 Int’l J. Pol. Culture Soc. 167, 169 (2003), JSTOR paywall, SpringerLink paywall. ↩
2.
Id. ↩
3.
Id. at 170. ↩
4.
Id. ↩
5.
Id. at 171.

(Due to the Albanian population in the area, Kosovo was established as an “autonomous region,” which theoretically promoted equality between the different ethnic groups within Yugoslavia at a federal level). ↩
6.
The Kosovo Conflict and International Law: An Analytical Documentation 1974–1999, 1 (Heike Krieger ed. 2001), [hereinafter Kosovo Conflict and International Law]; Rogel, supra note 1, at 171. ↩
7.
Kosovo Conflict and International Law, supra note 6, at 522; Rogel, supra note 1, at 172.

(The Assembly of Kosovo met on March 23, 1989 to vote on amendments governing the Kosovo’s autonomy, granted in 1974. Despite how a majority of Kosovo Albanian delegates abstained from voting to deny the Assembly the necessary two-thirds majority, the President of the Assembly nevertheless declared that the amendments passed). ↩
8.
Rogel, supra note 1, at 174. ↩
9.
Id. at 175. ↩
10.
Id. at 175; Edward Morgan-Jones, Neophytos Loizides & Djordje Stefanovic, 20 Years Later, This is What Bosnians Think About the Dayton Peace Accords, Wash. Post, Dec. 14, 2015, available online.

(The Dayton Agreement failed to effectively address the conflict in Kosovo. Indeed, the United Nations merely threatened to maintain sanctions against Belgrade unless Serbia directly established dialogue with Kosovars. The broader, primary focus of the Dayton Agreement was, instead, to address the ethnic cleansing perpetrated by the militaries of the Orthodox Bosnian Serbs, the Catholic Bosnian Croats, and the Muslim Bosniacs). ↩
11.
Rogel, supra note 1, at 174; NATO’s Role in Relation to the Conflict in Kosovo, NATO, Jul. 15, 1999, available online, (last visited Jul. 21, 2017). ↩
12.
Rogel, supra note 1, at 177. Mark Webber, The Kosovo War: A Recapitulation, 85 Int’l Aff. 447, 450 (Apr. 28, 2009), Oxford Academic paywall. ↩
13.
Anne-Sophie Massa, NATO’s Intervention in Kosovo and the Decision of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia Not to Investigate: An Abusive Exercise of Prosecutorial Discretion?, 24 Berkeley J. Int’l L. 610, 611 (2006), available online. ↩
14.
Webber, supra note 12, at 451. ↩
15.
Id. ↩
16.
Massa, supra note 13, at 613–14. ↩
17.
Id. at 633. ↩
18.
Id. at 643. ↩
19.
Id. at 644. ↩
20.
Id. at 645. ↩
21.
Id. ↩
22.
Rwanda: How the Genocide Happened, BBC, May 17, 2011, available online. ↩
23.
Id. ↩
24.
Id. ↩
25.
Helen M. Hintjens, Explaining the 1994 Genocide in Rwanda, 37 J. Modern Afr. Stud. 241, 256 (1999), available online.

(The Tutsis often found employment as traders and merchants, occupations that the Hutus viewed as related to the economic meltdown). ↩
26.
Rwanda: How the Genocide Happened, supra note 22. ↩
27.
Hintjens, supra note 25, at 264–66.

(The Habyarimana regime effectively used media to propagate false reports of RPF plots and attacks on Hutus in Rwanda). ↩
28.
Rwanda: How the Genocide Happened, supra note 22. ↩
29.
Id. ↩
30.
Id. ↩
31.
Paul Rusesabagina, Compendium of RPF Crimes—October 1990 to Present: The Case for Overdue Prosecution (Nov. 2006), available online.

(The RPF allegedly used similar methods throughout the early 1990s against the Habyarimana regime). ↩
32.
Rwanda: How the Genocide Happened, supra note 22. ↩
33.
Victor Peskin, Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 4 J. Hum. Rts. 213, 222 (2005), available online. ↩
34.
Id. ↩
35.
Id. at 223. ↩
36.
Id. ↩
37.
Id. at 224. ↩
38.
Thierry Cruvellier, The ICC, Out of Africa, N.Y. Times, Nov. 6, 2016, available online. ↩
39.
Alexandra Zavis & Robyn Dixon, Only Africans Have Been Tried at the Court for the Worst Crimes on Earth, L.A. Times, Oct. 23, 2016, available online. ↩
40.
Id. ↩
41.
Id. ↩
42.
Cruvellier, supra note 38. ↩
43.
Patricia Daley & Rowan Popplewell, The Appeal of Third Termism and Militarism in Burundi, 43 Rev. Afr. Pol. Econ. 648, 648 (2016), Taylor Francis paywall. ↩
44.
Id. ↩
45.
Press Release, UN Office of the High Commissioner for Human Rights, Burundi: UN Investigation Urges Strong Action in Light of Gross, Widespread and Systematic Human Rights Violations (Sep. 20, 2016), [hereinafter Burundi 2016 OHCHR], available online; Yolande Bouka, The True Price of Nkurunziza’s Third Term, Inst. Sec. Studies , Aug. 24, 2015, available online; Conor Gaffey, After Burundi, Which Other African States Could Abandon the ICC?, Newsweek, Oct. 19, 2015, available online.

(Burundi 2016 OHCHR noted that the Imbonerakure, the ruling party’s youth wing, committed mass executions alongside the country’s security forces. Most of the victims were individuals opposed to Nkurunziza. The Nkurunziza regime additionally torture of political dissidents and were subject to “attachment of weights to victims’ testicles, the crushing of fingers and toes with pliers, progressive burning with a blow torch, and being forced to sit in acid or on broken glass or nails.”). ↩
46.
Burundi 2016 OHCHR, supra note 41. ↩
47.
Gaffey, supra note 41. ↩
48.
Burundi moves to quit the International Criminal Court, Al Jazeera, Oct. 12, 2016, available online.

(94 out of 110 legislators were in favor of withdrawing from the ICC, with 2 opposing and 14 abstaining). ↩
49.
Gaffey, supra note 41.

(Sudan has already asserted that it is not under ICC jurisdiction, because the country never ratified the Rome Statute, despite signing the statute in 2000. Moreover, Ugandan president Yoweri Museveni has threatened withdrawal, while voicing concerns that the ICC was merely a Western “tool to target” Africa). ↩
50.
Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265, 268 (2012), available online. ↩
51.
Id. ↩
52.
Id. ↩
53.
Tatiana E. Sainati, Divided We Fall: How the International Criminal Court Can Promote Compliance with International Law by Working with Regional Courts, 49 Vand. J. Transnat’l L. 191, 209 (2016), available online, archived. ↩
54.
Id. at 210. ↩
55.
Id. at 213. ↩
56.
Alana Tiemessen, The International Criminal Court and the Politics of Prosecutions, 18 Int’l J. of Hum. Rts. 444, 444 (2014), Taylor Francis paywall ↩
57.
Id. at 451. ↩
58.
Id. ↩
59.
Id. ↩
60.
Id. ↩
61.
Id. at 454. ↩
62.
Id. ↩
63.
Id. at 455. ↩
64.
Id. ↩
65.
Id. at 456. ↩
66.
Id. at 455. ↩
67.
Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 Am. J. Int’l L. 510, 512 (2003), available online. ↩
68.
Id. at 514. ↩
69.
Id. at 515. ↩
70.
deGuzman, supra note 50, at 293. ↩
71.
Danner, supra note 67, at 518. ↩
72.
Id. at 519–20.

(ICC’s first budget provided only €3,961,200 to the Prosecutor, out of a total of €30,893,500). ↩
73.
Id. at 519.

(A detriment to the Prosecutor’s denial to investigate, however, is the presumption that the defendant is an innocent party, even if the case is actually meritorious). ↩
74.
deGuzman, supra note 50, at 295. ↩
75.
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 15, available online.

(“If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.”)

International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 48 (2013), available online, archived.

(“In determining whether there is a reasonable basis to proceed with an investigation under article 15(3) the Prosecutor shall consider the factors set out in Article 53, paragraph 1(a) to (c) [whether a crime within the jurisdiction of the Court has been committed […] and whether an investigation would not be in the interests of justice].”)

Vincent Sarara Robi, Prosecutorial Discretion Within the International Criminal Court (ICC): A Critical Legal Analysis and Preliminary Reflections on ICC Intervention into Kenya, 1, 32–33 (undated, unpublished manuscript), available online. ↩
76.
Robi, supra note 75, at 44. ↩
77.
Id. ↩
78.
Id. at 36.

(“[The Office of the Prosecutor’s policy states:] ‘complementarity involves an examination of the existence of relevant national proceedings in relation to the potential cases being considered for investigation by the Office, […] taking into consideration the Office’s policy to focus on those who appear to bear the greatest responsibility for the most serious crimes.’”). ↩
79.
Id. ↩
80.
Id. at 37. ↩
81.
Id. ↩
82.
Allen S. Weiner, Prudent Politics: The International Criminal Court, International Relations, and Prosecutorial Independence, 12 Wash. U. Global Stud. L. Rev. 545, 555 (2013), available online. ↩
83.
Id. ↩
84.
Id. at 556. ↩
85.
Id. ↩

roccosan
6426
September 6, 2017
3:10 pm

Premise

The uniqueness among the Judicial Systems of ICC is a challenge for the application of statistics to measurement about its activities. This is for two reasons: the absence of a reasonable term of comparison; the self-referentiality of the system of measurement. Both the features provide the occasion for a reflection about the meaning of measurement of an object that is strictly qualitative and hold an ontology bereft of correspondent foreseeable phenomenology for the singularity of a judicial job. Afterwards, the suggestion for applying a methodology consistent with the object and its purposes will answer to the questions posed by the second report.

Defining the object

The measurement the Law is the operation that overcomes the set of abstract concepts linked to a system of rules and principles. Therefore, the observable object becomes the enforcement of the Law and not the Law, inasmuch as the complexity of the interrelations, the causation links and the unforeseeable feedback among Law and many aspects of the society produce a manifold cognitive map with unknown outcome, usually not observable. Implementing the scheme suggested by Tremper et al. 2003, the observational process can be divided into three logical stages: Design, Testing, Production.

The first stage consists in the following procedures:

Formulate the goals;
Establish the legal framework;
Specify the policy scope;
Choose the measurement objectives
Develop the conceptual model
Generate tentative list of relevant legal measures
Conduct legal research to test the provisional measures
Assess adequacy provisional measures; in case of inadequate return to the generation the list of measures
Formalize variables, definitions, choice values and coding procedures

The second stage consists in the following procedures:

create codebook and protocol
conduct preliminary survey
record results and ancillary information
conduct quality control
assess reliability and validity; in case of inadequate proceed to the revision of codebook and protocol
finalize codebook and protocol

The third stage consists in the following procedures

Realize the database
Preparation of the questionnaire with the training of the data capture
Set up algorithms for the missing data
Assess the data capture; in case of inadequate proceed to the revision of the questionnaire
Processing control and data visualization
Disseminate the results
Evaluate the attainment of the goals

The entire process is characterized by iterative steps and circularity; the goals are tuning in accordance to the evidences. These features could complicate the execution and cause a significant increase in the budget. Nonetheless the scheme is overall a guideline to provide a fitted benchmark for building a general system of measurement applied to the judicial issues whether for the appraisal of its effectiveness or for the analysis of the state of the law enforcement.

Measuring the work of ICC

The system of measurement of the ICC’s performance is the answer to the request of the 13th session of the International Criminal Court’s Assembly of States Parties, Resolution 5 (December 17, 2014), Annex I, para. 7 (available online). To invite the Court to follow the evidence-base policy is inspired by the suggestion to overcome the policy based on the mixture between theory, intuition, ideology and conventional wisdom (Banks, 2009). Actually, to apply the evidence-base policy to the management of the Court is also an ideology, because the worth of the empirical demonstration is equivalent to the other considerations both theoretical and operative (Davies, 2004). Furthermore, the application to the international penal court puts a challenge to the method chose, because the jurisprudential methodology is typically deductive, while the evidence-base policy has a strong inductive feature that moves toward an inferential approach when probability is introduced. Nevertheless it is important to remember the role of judicial statistics and nomostatistics in the history of the management of the state’s functions and the statistics themselves.

Statistics sing the saga of the many not the few; of case en masse, not of cases sui generis. Accordingly, the single case is shorn of its individuality and is merged—or submerged—in the herd. Whereupon the group phenomena are dissected by analysts armed with an assortment of averages, deviations, probable errors, ratios, indices, time-series, correlation coefficients, curve fits and other apparatus. (Jaffin 1935, pp 11–12)

The citation stresses two concepts: the single case is not object of statistics; statistics speak with the functions of data, but they must be a model for interpreting the meaning of these functions. Moreover, the problematic application of inferential model to justice issues depends on the difficult to build samples and panels really representative and respectful to the rules of sampling theory. Nonetheless the application of the probability to the evaluation of the probation in a process has carried out some significant hallmarks in the conceptualization of the uncertainty and its mathematical use (Hacking, 1990; Hald, 2004; Hacking, 2006; Sheynin, 2012), causing an important debate like that one about the Poisson distribution and the Law of Large Numbers.

Unfortunately, for the most part of these contributions are not useful for this measurement of ICC’s activities, currently an experience unique in the history of the law enforcement. The most disruptive consequence is the lack of information that is useful for building reliable statistics. In this way the preliminary study conducted by the Open Society Justice Initiative that provided several recommendations, often shared, has avoided an empirical approach that is useful to show what kind of the indicators could be better to adopt. For example, the smart advice to distinguish three categories of indicators (operational, Rome-statute, impact) would need a suggestion about the methodology of aggregation in accordance with the established set of meaningful measurement. The invitation to the creativity and the vision is associated with a form of self-consciousness that is more rhetorical than operative. Nonetheless the difficulties to draw a data generator process in this specific case has forced to exclude to create a specific codebook and a correspondent protocol. Starting from the first goal, the correspondent legal measures are counting and debatable when the report tries to provide a metric for the proper Law concepts like fair, whereas the choice made could be confuted. To the offset vagueness, the first goal is pursued detecting a large list of measures in correspondence to each stage of the trial. Calculating the indicators suggested in the second report, the attempt to obtain holistic indicators is really unreachable.

The second goal has set up measures closer to an effective indicator; instead, the third goal required a resume of two dimensions: Physical and asset security and Information security. Concerning the fourth goal the most effective methodology of measure is a survey of the victim population (UNODC-UNECE, 2010); nonetheless the context in which the victims acts may advise setting up a group of indirect measures through the evaluation of the degree of access to the Court. It is relevant to stress the strong will to guarantee a reliable measure of the role of ICC in relationship with one of the main reasons that caused the birth of the Court: to give justice to the people oppressed by Regimes or victims of Deprivation, Terror and War committed by States. Anyway the involvement of the victims needs a further effort to build a reliable system of information about its progressive development.

The entire proposed system of measurements shows the incapacity to provide a clear synthesis of the performance of ICC respect to each goal and the overall outcome attained. The tables in the annexes which lists the values of the indicators of the second report are remarkable, nonetheless the accuracy of the details does not help to formulate an assessment about the performance of Court regarding each goal. Moreover, the comparison among the different trials is out of reach, because the indicators do not have a range of variation.

How to improve the system?

It is historical evidence (Meitzen, 1891; Robert, 1977; Hacking, 1990; Mo, 1995; Rousseaux et al., 1998; Tixhon, 1999; Perelli D’Argenzio M. P., 2002; Bingham, 2006; Hacking 2006; Bolaños Guerra, 2011; Palermo, 2011; Zabell, 2011; ISTAT, 2013; Sheynin, 2012, 2014) that the use of judicial statistics was one of the most important driving the development of the statistical thinking and delivering the easiest way to measure actions (including their effects), events (including their likelihood) and outcomes proper of the law enforcement thorough the enumeration of the proceedings and crime events: a census methodology.

In the preface of the very famous book by Duff, How to Lie with Statistics, the author speaks about a father-in-law’s observation about the increased level of crime moving from Iowa to California after reading the newspaper as an informal statistical statement, pointing out the newspaper as his universe of reference for extracting the representative sample. Nowadays, how much is important to proceed in the use of a census approach when it is not possible to identify correctly the population or when the population is too small (less of 50 cases) is forgotten. Sir Kendall’s argument about the statistics totally different respect to “Political arithmetic” as the technique of counting “complete enumeration… to be a record of a situation” (Kendall, 1960), has convinced most of statistician to leave the search of measures of the Res Publica, including the Law enforcement, to the scholars of social and political sciences rather than methodological fellows. For this reason, in social context, the statistical mainstream is a sample anyway the universe at the instant it is not properly specified or fewer than 50 independent observable units . Statistics without inference is not acceptable and every social scientist knows it. And the system of ICC’s measurement seems to confirm this argument: the absence of indices statistically concerns statistically significant produces a list of counts, merely descriptive and bereft operational availment.

Nonetheless, the focus on the development of Court-wide performance indicators is an imperative of the normal activities of ICC and the proposal of the second report has to use a statistical answer in continuity with the heritage of nomostatistics (Jacobi, 1935; Jaffin 1939), because Statistics is not only the operative branch of the inductive methodology, but the mathematical language for understanding the reality and the count data are the first method of measurement. What Is To Be Done?

The suggestion is “data speak themselves”, insomuch that guides to a metric fitted to the features of the ICC. For the nature of the information the choice is the use of a ranking function applying to the frequency. This function classifies each measure respect to the whole universe detected. Through the rank these statistics classify the outcome of each counting out of the search of the range of variation, which is not possible to define for the most part of the measure proposed. Each measure looses the dimension of the absolute value for acquiring the dimension of position respect to own performance in ordinal graduation. In this way, the work accomplished by the Court will produce the position and the comparison has full meaning, whereas this operation is inner bench-marking, coherent with the uniqueness of the ICC.

Afterwards, the ranks respect to a different dimension of each goal could be gathered in a composite index could be built using a correspondent system of weight based of the order of the ranking, when it has a meaning. In the case where there is no precise meaning, the jurisprudential relations are taken into account with measures that have a weight and can be associated with the same weight. Other possibility we could apply a Delphi method for the estimation of the weight vector.

The purpose of the composite index causes the choice of the aggregation method: if they give more preference to a specific dimension than others the geometric method is better than linear one (OECD, 2008). As the composite index is also a rank, these indicators provide the performance of each dimension to everyone who wants to know how the Court runs. Moreover, the new suggested indicators may be displayed on the web site through a dashboard.

Conclusion

The measurement of the performance of ICC is harsh challenge for the statistician, because the pillars of the statistical job are very fragile. Nevertheless the need to measure the performance of the Court is a priority for its success. The proposed system is not able to provide an outstanding picture. The suggestion to pass a system based on the rank function could permit stakeholders to realize a dashboard in the web site.

References

Armatte M. (2011) L’observation scientifique est-elle un témoignage? Electronic Journal for History of Probability and Statistics Vol 7, n°1; Juin/June 2011 available online

Banks, G. (2009), “Evidence-based policy making: What is it? How do we get it?”, ANU Public Lecture Series, ANZSOG, Canberra, February

Bingham Nicholas H. (2006) Heroic periods, Mathématiques et sciences humaines [En ligne], 176 | Hiver 2006, mis en ligne le 28 juillet 2006, consulté le 05 décembre 2016; DOI: 10.4000/msh.3641 : available online

Bolaños Guerra B. (2011) Condorcet et l’épistémologie juridique. Lettres à Turgot de 1771—Electronic Journal for History of Probability and Statistics Vol 7, n°1; Juin/June 2011 available online

Davies, P. (2004), “Is Evidence-Based Government Possible?”, Jerry Lee Lecture 2004, 4th Annual Campbell Collaboration Colloquium, Washington D.C., 19 February

Hacking, Ian (2006) The Emergence of Probability Second Edition Cambridge University Press 1975–2006 ISBN 0-521-86655-3

Hacking, Ian (1990) The Taming of Chance Cambridge University Press 1990 ISBN 0 521380146 hard covers ISBN 0 521 38884 8 paperback

Hald, Anders (2004) A History of Parametric Statistical Inference from Bernoulli to Fisher, 1713 to 1935 Department of Applied Mathematics and Statistics—University of Copenhagen—ISBN 87-7834-628-2

Huff, Darrell (1954) How to lie with Statistics—Pictures by IRVING GELS w W’ NORTON & COMPANY· INC· New York, 1954 ISBN 0 393 05264 8

Kendall, M. G. (1960) Where shall the history of statistics begin? Biometrika, 47, 447–49 (1960)

ISTAT (2013) Il percorso storico della statistica nell’Italia unita Atti del workshop—Roma, 7 giugno 2011 ISBN 978-88-458-1734-2 (print) ISBN 978-88-458-1760-1 (digital)

Jacoby, Sidney B. (1939) Some Realism about Judicial Statistics Virginia Law Review Vol. 25, No. 5 (Mar. 1939), pp. 528–558, available online

Jaffin, George H. (1935) Prologue to the Nomostatistics Columbia Law Review Vol. 35, No. 1 (Jan. 1935), pp. 1–32, available online

Meitzen, August (1891) History, theory, and technique of statistics—Part 1 History of Statistics translated by Roland P. Falkner American Academy of Political and Social Science—available online

Mo, Y. (1995) History of China Statistics. Statistical Research (5) 68–76

National Academies of Sciences, Engineering, and Medicine. (2016). Modernizing Crime Statistics—Report 1: Defining and Classifying Crime. Washington, DC: The National Academies Press. Doi:10.17226/23492.

Palermo, A. (2011) Logique juridique et logique probabiliste chez F. M. Pagano Electronic Journal for History of Probability and Statistics Vol 7, n°1; Juin/June 2011 available online

Perelli, D’Argenzio M. P. (2002) Storia della Statistica. I momenti decisivi in AA.VV. L’insegnamento della Matematica e delle Scienze Integrate Vol.25a-B N.6 Novembre–Dicembre 2002

Robert Philippe (1977). Les statistiques criminelles et la recherche. Réflexions conceptuelles. In: Déviance et société. 1977—Vol. 1—N°1. pp. 3–27; doi : 10.3406/ds.1977.935 available online

Rousseaux, Xavier; Stevens, Frédéric; Tixhon, Axel. Les origines de la statistique pénale en Belgique (1795–1835). In: Déviance et société. 1998—Vol. 22—N°2. pp. 127–153; doi : 10.3406/ds.1998.1658 available online

Sheynin, Oscar (2012) History of Statistics Berlin, 2012 ISBN 978-3-942944-20-5

Sheynin, Oscar (2014) (compiled and translated by) Studies in the History of Statistics and Probability Collected Translations: P. R. Montmort, Nic. Bernoulli, P. S. Laplace, S. D. Poisson and others vol. 4 Privately printed

Tixhon, Axel (1999) Contrôler la Justice, construire l’Etat et surveiller le crime au XIXe siècle. Naissance et développement de la statistique judiciaire en Belgique (1795–1901). In: Revue belge de philologie et d’histoire, tome 77, fasc. 4, 1999. Histoire medievale, moderne et contemporaine—Middeleeuwse, moderne en hedendaagse geschiedenis. pp. 965–1001; doi : 10.3406/rbph.1999.4394 available online

Tremper, Charles & Thomas, Sue & Wagenaar, Alexander. (2010). Measuring Law for Evaluation Research Evaluation review 34. 242–66. DOI 10.1177/0193841X10370018.

UNODC-UNECE United Nations Office on Drugs and Crime—United Nations Economic Commission for Europe (2010) Manual On Victimization Surveys—Geneva, 2010

Zabell, Sandy L. (2011) The Subjective and the Objective in Handbook of Philosophy of Science Volume 7 Philosophy of Statistics Edited by Bandyopadhyay Prasanta S. and Forster Malcom R. North Holland Elsevier B.V. 2011, ISBN 978-0-444-51862-0

International Criminal Court, Report of the Court on the Development of Performance Indicators for the International Criminal Court (Nov. 12, 2015), available online, archived.

International Criminal Court, Second Court’s Report on the Development of Performance Indicators for the International Criminal Court (Nov. 11, 2016), available online, archived.

International Criminal Court, Strategic Plan 2013–2017 (Jul. 24, 2015), available online.

Open Society Justice Initiative, Briefing Paper: Establishing Performance Indicators for the International Criminal Court (Nov. 2015), available online, archived.

How can the Performance of the ICC be Properly Assessed?, ICC Forum (Jul. 10, 2017), available online.

Nerissa
31276
July 16, 2018
9:37 am

Interesting comment on the OTP's role during the PE in Colombia.
Curious whether its role will change now that a peace agreement has been adopted.

Home Page for This Issue

Issue Background Materials Page

Featured Comments

roccosan: Premise The uniqueness among the Judicial Systems of ICC is a challenge for the application of statistics to measurement about its activities. This is for two reasons: the absence of a reasonable term of comparison; the self-referentiality of the system of measurement. Both the features provide the occasion for a reflection about the meaning of measurement of an object that is strictly qualitative and hold an ontology bereft of... (more)
chrisjlin: Prosecutorial Discretion in Investigations: A Balance Between Politicization and Independence Abstract I examine the possibility of enforcing a balance between discretion and independence, seeing as how the International Criminal Court (“ICC”) Prosecutor’s decision to investigate a specific country, individual or group is necessarily political, given the ICC’s method of functioning. Despite the occurrence of... (more)
cgsanchez: The Al Mahdi Case Study: Establishing a Media Bias Baseline to Support Future Research Regarding how ICC’s Operations Affects Public Perception International media reaction to the case The Prosecution v. Ahmad Al Faqi Al Mahdi heard in the International Criminal Court reveals that the case’s timeline, a country’s governance structure, and whether or not the country is an ICC... (more)
Hanni Maoz: Evaluation of the Court Performance: A Critical View of the International Criminal Court Indicators for Security Introduction In November 2015, the International Criminal Court (the ICC or the Court) released Report of the Court on the development of performance indicators for the International Criminal Court.1 This First Report contained qualitative and quantitative indicators that were supposed to allow... (more)
Sebastian Barrios... Evaluating the performance of the ICC: the value of and challenges associated with measuring the expeditiousness of ICC’s proceedings I. Introduction One of the most persistent and often repeated criticisms of all international criminal tribunals has been that they cost too much money and take too long.1 After having been in operation for more than ten years, the International Criminal Court... (more)
kbanafshe: Evaluating the Performance of the Court: To What Extent have the Actions of the ICC Transformed the Politics and Fostered Peace Within Central and Eastern Africa? The International Criminal Court (“ICC” or “the Court”) was established in 1998 to “exercise its jurisdiction over the most serious crimes of international concern.”1 The main mandate of the court is to bring wrongdoers to justice, however... (more)
Mehrunisa Ranjh: Measuring Victim Access to the International Criminal Court: Peace as the Ultimate Goal of International Justice Introduction The creation of the International Criminal Court (“ICC”) was an attempt to traverse previously uncharted territory by setting up a permanent, truly international court that would remain impartial, expeditious, and transparent in the face of huge and often conflicting external pressures. The court was envisioned... (more)
emrenslo: The Performance Indicator “Expeditiousness of Proceedings” Will Cause Unintended Negative Consequences Using “Expeditiousness of Proceedings” as a performance indicator, as currently envisioned by the ICC, has unintended negative consequences for the prosecutorial, judicial, and management aspects of the Court. I. Introduction The ICC released a... (more)
pgsojo: Measuring Performance on Arrests and Visualizing a More Effective Way in Procuring Them Performance indicators to evaluate the success or failure of the International Criminal Court (ICC) in terms of its mandate of arresting suspects. It is clear how the world has always been in desperate need of a worldwide ruling court, where criminals of great atrocities would face justice internationally known and accepted. The ICC was... (more)
aaacosta09: Measuring Performance: A Case Study of Positive Complementarity Catalyzed During the Preliminary Examination Stage in Colombia An effective way to evaluate the performance of the ICC is to measure the positive complementarity catalyzed by the Court during the preliminary examination stage in Colombia. Introduction The International Criminal Court (“ICC” or “the Court”) was... (more)

The Performance Question — Comments

The ICC Should Develop a Qualitative Performance Indicator to Measure Whether Victims’ Access to the Court Has Been Adequate

I. Introduction

II. Victim Participation in ICC Proceedings is an Aspect of “Victim Access” that the ICC’s Performance Indicators Should Evaluate

III. Defining “Adequate Access” is a Necessary Starting Point for Developing a Qualitative Performance Indicator

A. Victims

B. Adequate Access

IV. Existing Qualitative Research on Victim Participation Can Help Guide the ICC’s Creation of a Qualitative Performance Indicator

A. Two Studies of Civil Party Participation in the ECCC

B. Two Studies of Victim Participation at the ICC

V. Key Recommendations for a Qualitative Performance Indicator That Measures Victims’ Adequate Access to the Court

Conclusion

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

The United States Witness Protection Program (WITSEC) is a highly successful program that can be used by the International Criminal Court as a performance indicator to measure its success in ensuring adequate security for its witnesses.

I. Introduction

II. The WITSEC as a Performance Indicator

III. Measuring the ICC’s Performance with the WITSEC as a Performance Indicator

IV. Solutions

V. Conclusion

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

I. Introduction

II. The Contours of the Court’s Complementarity Regime

A. Legal Requirements

B. The Desirability of a Complementary Court

III. Challenges in Measuring Complementarity

IV. Recommendation

V. Conclusion

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

The Deterrent Effect of the International Criminal Court on Sexual Violence in Armed Conflict Whether or not the International Criminal Court (ICC) successfully deters crimes under its jurisdiction should be considered when assessing the performance of the Court.

I. Sexual Violence in Armed Conflict

II. Introducing the SVAC Dataset

III. Working Hypotheses About the ICC’s Effect on Sexual Violence52

IV. Empirical Investigation of the ICC’s Impacts

A. Creation of the ICC as a Deterrent

B. Creation of the ICC as a Deterrent on States that are Armed Actors

C. Deterrent Effects of the ICC on Armed Actors in States Parties

V. Conclusion

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

Introduction

The Importance of Perception

The Nebulous Key Performance Areas

Proxy Measures of Satisfaction

The Binary Questionnaire

Conclusion

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

Introduction

Legitimacy is Essential for the ICC to Achieve its Goal of Preventing Future Crimes

Legitimacy Increases Support for the Court’s Decisions

Legitimacy Reflects the Performance of the ICC

Measuring Legitimacy

Measuring the Degree of the ICC’s Diffuse Support

Enhance its Legitimacy

Conclusion

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

Introduction

The ICC’s Strategy of Positive Complementarity

Why Colombia?

Background on Colombian Conflict

Assessment of Colombia

Positive Complementarity in the Transitional Justice Process

Ley de Justicia y Paz: Justice and Peace Law

Marco Jurídico para la Paz: Legal Framework for Peace

Final Accord for the End of the Conflict and the Construction of a Stable and Lasting Peace

Positive Complementarity with Regard to Sexual Crimes

Sexual and Gender-Based Crimes

SGBC in Colombia

Reform and Development of SGBC Prosecutions

Counterfactual Analysis

Key Findings/Conclusion

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

Measuring Performance on Arrests and Visualizing a More Effective Way in Procuring Them Performance indicators to evaluate the success or failure of the International Criminal Court (ICC) in terms of its mandate of arresting suspects.

People Indicted by the ICC Since 2003

Arrest by the ICC and the Duration It Took Before the Arrests were Effected

ICC Surrender

Sealed Indictment

Focus on African Countries

Comparison between ICC and the ICTY

NATO’s Ground Force for ICTY and Implications for ICC

Potential Police Force in Service of the ICC

Differencing Police Force from Military Force

The Deterrent Effect of the International Criminal Court on Sexual Violence in Armed Conflict

Whether or not the International Criminal Court (ICC) successfully deters crimes under its jurisdiction should be considered when assessing the performance of the Court.

Measuring Performance on Arrests and Visualizing a More Effective Way in Procuring Them

Performance indicators to evaluate the success or failure of the International Criminal Court (ICC) in terms of its mandate of arresting suspects.