The Performance Question — Comments

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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?”

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. 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), available online, archived [hereinafter Victims’ Guide].

    (Victims typically exercise this right through a legal representative).

  2. 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) available online, [hereinafter Joint Submissions].

  3. 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. 4.

    Id. at 6 (emphasis added).

  5. 5.

    Id. at 6.

  6. 6.

    Id.

  7. 7.

    Id.

  8. 8.

    Id.

  9. 9.

    Id.

  10. 10.

    Id.

  11. 11.

    Stephen Smith Cody, Victims at the ICC: What is the Way Forward?, Post-Conflict Just. (Dec. 11, 2014), available online.

  12. 12.

    Victims, ICC, available online (last visited Jul. 1, 2017) [hereinafter Victims].

  13. 13.

    Victims’ Guide, supra note 1, at 13.

  14. 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).

  15. 15.

    Id. at art. 19(3).

  16. 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. 17.

    International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 91 (2013), available online, archived.

  18. 18.

    Id. R. 92.

  19. 19.

    See Mélanie Vianney-Liaud, Emerging Voices: Victim Participation in ICC and ECCC’s Proceedings, Opinio Juris (Aug. 20, 2015), available online.

  20. 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. 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. 22.

    Joint Submissions, supra note 2, at 9.

  23. 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. 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. 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. 26.

    Joint Submissions, supra note 2, at 8.

  27. 27.

    Id.

  28. 28.

    Victims, supra note 12.

  29. 29.

    Victims’ Guide, supra note 1, at 13.

  30. 30.

    Id.

  31. 31.

    Id.

  32. 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. 33.

    Id. at 12.

  34. 34.

    Joint Submissions, supra note 2, at 9 (emphasis added).

  35. 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. 36.

    Joint Submissions, supra note 2, at 4.

  37. 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. 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. 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. 40.

    See Polkinghorne, supra note 38, at 142.

    (“The most widely used approach to the production of qualitative data is interviews with participants.”)

  41. 41.

    Catherine Cassell & Gillian Symon Eds., Qualitative Research in Work Contexts, in Qualitative Methods in Organizational Research, A Practical Guide 7 (1994).

  42. 42.

    Id.

  43. 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. 44.

    Id.

  45. 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. 46.

    Id.

  47. 47.

    Florian Kohlbacher, The Use of Qualitative Content Analysis in Case Study Research, 7 F. Qualitative Soc. Research 21 (Jan. 2006), available online.

  48. 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. 49.

    Kohlbacher, supra note 47.

  50. 50.

    Leech & Onwuegbuzie, supra note 45, at 384.

  51. 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. 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. 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. 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. 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. 56.

    Id. at 503.

  57. 57.

    Id.

  58. 58.

    Id. at 504.

  59. 59.

    Id. at 507.

  60. 60.

    Id.

  61. 61.

    Id.

  62. 62.

    Id.

  63. 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. 64.

    Id. at 516.

    (A majority of the participants were around fifty years old).

  65. 65.

    Id. at 507.

  66. 66.

    Id.

  67. 67.

    Id.

  68. 68.

    Id.

  69. 69.

    Id.

  70. 70.

    Id.

  71. 71.

    Hoven, supra note 39, at 9.

  72. 72.

    Id. at 9 (emphasis added).

  73. 73.

    Id. at 10.

  74. 74.

    Id.

  75. 75.

    Id. at 9–10.

  76. 76.

    Id. at 10.

  77. 77.

    Id.

  78. 78.

    Id.

    (Hoven was in Cambodia from June to November 2012).

  79. 79.

    Id.

  80. 80.

    Id. at 26.

  81. 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. 82.

    Id. at 5.

  83. 83.

    Id. at 1.

  84. 84.

    Id. at 3.

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

    Id. at 5.

  85. 85.

    Id. at 5.

  86. 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. 87.

    Id. at 6.

  88. 88.

    Id. at 6.

  89. 89.

    Id. at 5.

    (“Discussions were conducted in Lango, Luo or Swahili, and […] [a]udio recordings were later translated into English and analyzed.”)

  90. 90.

    Id. at 3–4.

  91. 91.

    Id. at 5.

  92. 92.

    Id. at 6.

  93. 93.

    Id.

  94. 94.

    Id.

  95. 95.

    Id.

  96. 96.

    Id.

  97. 97.

    Id.

  98. 98.

    Id. at 5.

  99. 99.

    Id. at 4.

  100. 100.

    Stephen Smith Cody et al., supra note 21.

  101. 101.

    Id. at 8.

  102. 102.

    Id.

  103. 103.

    Id.

  104. 104.

    Id. at 2.

  105. 105.

    Id.

  106. 106.

    Id. at 9.

  107. 107.

    Id. at 2.

  108. 108.

    Id. at 9–10.

  109. 109.

    Id. at 9.

  110. 110.

    Id. at 3.

  111. 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. 112.

    Id.

  113. 113.

    Id. at 2.

  114. 114.

    Polkinghorne, supra note 38, at 142.

  115. 115.

    Id.

  116. 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.”)

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. 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, available online [hereinafter DRC Tampering].

    (showing evidence of witness tampering in the Congo);

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

    (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. 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), available online [hereinafter Termination].

    (“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. 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. 4.

    International Justice Monitor, supra note 3.

  5. 5.

    Id.

  6. 6.

    See Human Rights Watch, ICC: Kenya Deputy President’s Case Ends (Apr. 5, 2016), available online; International Justice Monitor, supra note 3.

  7. 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. 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. 9.

    See Rosen, supra note 1.

  10. 10.

    See id.

  11. 11.

    Id.

  12. 12.

    Id.

  13. 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. 14.

    See Rosen, supra note 1.

  15. 15.

    Id.

  16. 16.

    Id.

  17. 17.

    Id.

  18. 18.

    Kenneth Roth, Africa Attacks the International Criminal Court, NYR (Feb. 6, 2014), available online.

  19. 19.

    See DRC Tampering, supra note 1.

  20. 20.

    See Bemba Tampering, supra note 1.

  21. 21.

    Bemba Tampering, supra note 1; DRC Tampering, supra note 1.

  22. 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. 23.

    Wakabi, supra note 22; DRC Tampering, supra note 1.

  24. 24.

    Bemba Tampering, supra note 1.

  25. 25.

    Bemba Tampering, supra note 1; Wakabi, supra note 22.

  26. 26.

    Bemba Tampering, supra note 1.

  27. 27.

    Witness Security Program, U.S. Marshals, available online (last visited Jul. 3, 2017) [hereinafter Witness Program].

  28. 28.

    Witness Program, supra note 27; see Gabriel Falcon, Inside the Witness Protection Program, CNN, Feb. 16, 2013, available online.

  29. 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. 30.

    Abdel-Monem, supra note 29.

  31. 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. 32.

    Bonsor, supra note 31; Witness Protection Program FAQ, In Plain Sight, NBC Universal, available online (last visited Jul. 3, 2017) [hereinafter Witness FAQ].

  33. 33.

    Bonsor, supra note 31.

  34. 34.

    Id.; Witness Program, supra note 27.

  35. 35.

    Rossen, supra note 31.

  36. 36.

    Witness Program, supra note 27; Witness FAQ, supra note 32.

  37. 37.

    Bonsor, supra note 31; Rossen, supra note 31.

  38. 38.

    Rossen, supra note 31.

  39. 39.

    Bonsor, supra note 31; Witness FAQ, supra note 32.

  40. 40.

    Is Enough Being Done to Protect ICC Witnesses, Global Just. (May 18, 2015), available online [hereinafter Enough Being Done]; Witnesses, ICC, available online (last visited Jul. 3, 2017) [hereinafter Witnesses].

  41. 41.

    Enough Being Done, supra note 40; Witnesses, supra note 40.

  42. 42.

    Id.

  43. 43.

    Id.

  44. 44.

    Witnesses, supra note 40.

  45. 45.

    Id.

  46. 46.

    Enough Being Done, supra note 40; Witnesses, supra note 40.

  47. 47.

    Abdel-Monem, supra note 29; Falcon, supra note 28; Sabbag, supra note 29; Yenkin, supra note 29.

  48. 48.

    Bonsor, supra note 31; Witness FAQ, supra note 32.

  49. 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. 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].

  51. 51.

    Frank Newport, Presidential Election 2016: Key Indicators, Gallup, available online (last visited Jul. 3, 2017).

  52. 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. 53.

    See all authorities, supra note 29 and accompanying text.

  54. 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. 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. 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. 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. 58.

    Murder Rates Nationally and by State, DPIC, available online (last visited Jul. 3, 2017).

  59. 59.

    Id.

  60. 60.

    Id.

  61. 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. 62.

    Witness Program, supra note 27.

  63. 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. 64.

    See all authorities, supra note 29 and accompanying text.

  65. 65.

    Bonsor, supra note 31; Witness FAQ, supra note 32.

  66. 66.

    See, e.g., id.; Rossen, supra note 31; Witness Program, supra note 27.

  67. 67.

    See, e.g., notes and accompanying text: supra note 1; supra note 2; supra note 8.

  68. 68.

    See, e.g., id.

  69. 69.

    See, e.g., supra note 40 and accompanying text.

  70. 70.

    See id.

  71. 71.

    Id.

  72. 72.

    Id.

  73. 73.

    See Bonsor, supra note 31.

  74. 74.

    Witness Program, supra note 27; Witness FAQ, supra note 32.

  75. 75.

    Bonsor, supra note 31; Rossen, supra note 31.

  76. 76.

    See all authorities, supra note 29 and accompanying text.

  77. 77.

    See, e.g., notes and accompanying text: supra note 1; supra note 2; supra note 8.

  78. 78.

    See, e.g., supra note 40 and accompanying text.

  79. 79.

    Al Mariam, Saving the ICC: A Proposal for a Witness Protection Program, ICC Forum (Apr. 6, 2014), available online.

  80. 80.

    See Witness Program, supra note 27.

  81. 81.

    See id.; Witness FAQ, supra note 32.

  82. 82.

    See, e.g., supra note 49 and accompanying text.

  83. 83.

    See U.S. Marshals, U.S. Marshals Service Talks WitSec to the World (Aug. 2006), available online.

  84. 84.

    Id.

  85. 85.

    See supra note 61 and accompanying text.

  86. 86.

    Rome Statute, supra note 50.

  87. 87.

    See supra note 56 and accompanying text.

  88. 88.

    United States of America, Nations Encyclo., available online (last visited Jul. 3, 2017).

  89. 89.

    See, e.g., notes and accompanying text: supra note 1; supra note 2; supra note 8.

  90. 90.

    See supra note 56 and accompanying text.

  91. 91.

    Kenya to Probe Death of Defense Witness in ICC Trial, Reuters, Jan. 7, 2015, available online.

  92. 92.

    See notes and accompanying text: supra note 1; supra note 2; supra note 8.

  93. 93.

    See supra note 61 and accompanying text.

  94. 94.

    See id. at 11–12, 16–17.

  95. 95.

    See id. at 11–12, 16–17.

  96. 96.

    The States Parties to the Rome Statute, ICC, available online (last visited Jul. 3, 2017).

  97. 97.

    See Falcon, supra note 28.

  98. 98.

    See, e.g., Marcus Baram, Start Snitching: Inside the Witness Protection Program, ABC News, Oct. 26, 2007, available online.

  99. 99.

    See Mariam, supra note 79.

  100. 100.

    Id.

  101. 101.

    Id.

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 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 Prosecutor v. Gaddafi the Appeals Chamber applied a test they had establish in 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 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. 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. 2.

    Id. art. 1.

  3. 3.

    Id. art. 53(1).

  4. 4.

    Id. art. 53(1)(b).

  5. 5.

    Office of the Prosecutor, International Criminal Court, Policy Paper on Preliminary Examinations ¶ 44 (Nov. 2013), available online, archived.

  6. 6.

    Id.

  7. 7.

    Rome Statute, supra note 1, art. 19(2).

  8. 8.

    Id. art. 17(1); Id. art. 20(3) deals with ne bis in idem or double jeopardy.

  9. 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. 10.

    Rome Statute, supra note 1, art. 18(2).

  11. 11.

    Id.

  12. 12.

    See Scheffer, supra note 9, at 222.

  13. 13.

    Rome Statute, supra note 1, art. 18(4).

  14. 14.

    Id. art. 18(3).

  15. 15.

    Id. art. 18(5).

  16. 16.

    Id. art. 19(1).

  17. 17.

    Id. art. 19(2).

  18. 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. 19.

    Prosecutor v. Katanga, supra note 18, ¶ 62.

  20. 20.

    Id. ¶¶ 80–82.

  21. 21.

    Id. ¶ 80.

  22. 22.

    Id. ¶ 116.

  23. 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. 24.

    Id. ¶ 73.

  25. 25.

    Id. ¶ 86.

  26. 26.

    Rome Statute, supra note 1, art. 17(2)(a).

  27. 27.

    Id. art. 17(2)(b).

  28. 28.

    Id. art. 17(2)(c).

  29. 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. 30.

    Id. ¶ 86.

  31. 31.

    Id. ¶ 190.

  32. 32.

    Id. ¶¶ 217–218.

  33. 33.

    Rome Statute, supra note 1, art. 17(3).

  34. 34.

    Prosecutor v. Al-Senussi, supra note 29, ¶ 274.

  35. 35.

    Id. ¶¶ 282, 287.

  36. 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. 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. 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. 39.

    Rome Statute, supra note 1, art. 17.

  40. 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. 41.

    Id.

  42. 42.

    Coalition for the International Criminal Court, available online (last visited Dec. 12, 2016).

  43. 43.

    Rome Statute, supra note 1, art. 17(1)(d).

  44. 44.

    Id. pmbl.; Carter, supra note 40, at 459.

  45. 45.

    Carter, supra note 40, at 460.

  46. 46.

    Seils, supra note 18, at 8.

  47. 47.

    Id.

  48. 48.

    Rome Statute, supra note 1, pmbl.

  49. 49.

    Id.

  50. 50.

    Seils, supra note 18, at 8.

  51. 51.

    Rome Statute, supra note 1, art. 18(2).

  52. 52.

    Id. art. 19(2)(b)-(c).

  53. 53.

    Carter, supra note 40, at 457.

  54. 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. 55.

    Carter, supra note 40, at 458; Rome Statute, supra note 1, art. 17(1)(a).

  56. 56.

    Carter, supra note 40, at 455.

  57. 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. 58.

    Leigh A. Payne et al., Transitional Justice Data Base Project (2010), available online (last visited Dec. 6, 2016).

  59. 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. 60.

    Id.

    (search for “Mech. Type: Trial”; “Mech. Level: Domestic”; “Target: Non-State and State Agents”; “Dates: From year 1970 to year 2007”).

  61. 61.

    Payne et al., supra note 58.

  62. 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. 63.

    About, Transitional Just. Research Collaborative, available online (last visited Dec. 6, 2016).

  64. 64.

    Id.

  65. 65.

    Frequently Asked Questions, Transitional Just. Research Collaborative, available online (last visited Dec. 6, 2016).

  66. 66.

    Id.

  67. 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. 68.

    Frequently Asked Questions, supra note 65.

  69. 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. 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. 71.

    Coalition For The International Criminal Court, supra note 42.

  72. 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. 73.

    Kastner, supra note 70, at 34.

  74. 74.

    Id.

  75. 75.

    Carter, supra note 40, at 461 n.42.

  76. 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. 77.

    Policy Paper on Preliminary Examinations, supra note 5, ¶ 31.

  78. 78.

    Id.

  79. 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. 80.

    Report on Preliminary Examination Activities 2016, supra note 79, ¶ 198.

  81. 81.

    Id. ¶ 217.

  82. 82.

    Id.

  83. 83.

    Id.

  84. 84.

    Id. ¶¶ 220–221.

  85. 85.

    Id. ¶ 217.

  86. 86.

    Id. ¶ 232.

  87. 87.

    Id. ¶ 243.

  88. 88.

    Id.

  89. 89.

    Id. ¶¶ 243–244.

  90. 90.

    Id. ¶ 245.

  91. 91.

    Id. ¶ 249.

  92. 92.

    Id. ¶ 286.

  93. 93.

    Id. ¶ 301.

  94. 94.

    Id. ¶ 299.

  95. 95.

    Id. ¶ 299.

  96. 96.

    Id. ¶ 300.

  97. 97.

    Id. ¶ 267; Corinne Dufka, Peter Bouckaert, Aloys Habimana & Matthew Wells, Bloody Monday: The September 28 Massacre and Rapes by Security Forces in Guinea (HRW, 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. 98.

    Report on Preliminary Examination Activities 2016, supra note 79, ¶ 264.

  99. 99.

    Id. ¶ 271.

  100. 100.

    Id. ¶¶ 273–274.

  101. 101.

    Rome Statute, supra note 1, art. 86.

    (states parties are obligated to cooperate with the Court in investigation and prosecution).

  102. 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. 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. 104.

    Carter, supra note 40, at 462.

  105. 105.

    Burke-White, supra note 102, at 54.

  106. 106.

    Id.

  107. 107.

    Carter, supra note 40, at 464.

  108. 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.

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

Figure 1 Armed Actors Per Year55

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

Figure 2 Percent of Armed Actors Participating in Sexual Violence57

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

Figure 3 Intensity of Sexual Violence Per Year59

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

Figure 4 Percent of AA and AASV that are States61

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

Figure 5 Rate of Armed Actors in ICC States Parties65

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

Figure 6 Armed Actors Participating in Sexual Violence in States Parties66

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

Figure 7 Intensity of Sexual Violence in States Parties68

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

  1. 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
  2. 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
  3. 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

  1. Afghanistan
  2. Australia
  3. Burundi
  4. Cambodia
  5. CAR
  6. Chad
  7. Colombia
  8. Comoros
  9. Congo
  10. Croatia
  11. DRC
  12. Georgia
  13. Djibouti
  14. Ecuador
  15. Venezuela
  16. Uganda
  17. Tajikistan
  18. Sierra Leone
  19. Senegal
  20. Romania
  21. Peru
  22. Paraguay
  23. Nigeria
  24. Mexico
  25. Mali
  26. Macedonia
  27. Liberia
  28. Lesotho
  29. Guinea
  30. Serbia
  31. Trinidad and Tobago
  32. 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. 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. 2.

    Id.

  3. 3.

    About, ICC, available online (last visited Dec. 15, 2016).

  4. 4.

    Hyeran Jo & Beth A. Simmons, Can the International Criminal Court Deter Atrocity? (Dec. 18, 2014), available online.

  5. 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. 6.

    Jo & Simmons, supra note 4, at 6.

  7. 7.

    About, supra note 3.

  8. 8.

    Jo & Simmons, supra note 4, at 4.

  9. 9.

    Dara Kay Cohen & Ragnhild Nordås, Sexual Violence in Armed Conflict Dataset, available online (last visited Dec. 14, 2016) [hereinafter SVAC Dataset].

  10. 10.

    Rome Statute, supra note 5.

  11. 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. 12.

    Rome Statute, supra note 5.

  13. 13.

    Introducing the SVAC Dataset, supra note 11.

    (further expands this definition to include sexual mutilation and sexual torture).

  14. 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. 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. 16.

    Wood, supra note 14, at 295.

  17. 17.

    Tool of War, supra note 15.

  18. 18.

    Wood, supra note 14, at 295.

  19. 19.

    Tool of War, supra note 15.

  20. 20.

    Wood, supra note 14, at 296.

  21. 21.

    Id.

  22. 22.

    Id.

  23. 23.

    Wood, supra note 14, at 301.

  24. 24.

    Introducing the SVAC Dataset, supra note 11, at 419.

  25. 25.

    Lotta Harbom, Erik Melander & Peter Wallensteen, Dyadic Dimensions of Armed Conflict, 1946–2007. 45(5): 697–710 (Sep. 1, 2008), SAGE paywall.

  26. 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. 27.

    Frequently Asked Questions, Sexual Violence in Armed Conflict Dataset, available online (last visited Dec. 14, 2016).

  28. 28.

    Introducing the SVAC Dataset, supra note 11, at 419.

  29. 29.

    Id.

  30. 30.

    Id.

  31. 31.

    Id. at 421.

  32. 32.

    Id.

  33. 33.

    Id.

  34. 34.

    Id.

  35. 35.

    Id.

  36. 36.

    Id. at 419.

  37. 37.

    Dara Kay Cohen & Ragnhild Nordås, Sexual Violence in Armed Conflict Dataset: Codebook and User Instruction Guide (Oct. 25, 2013), available online.

  38. 38.

    Id.

  39. 39.

    Id.

  40. 40.

    Id.

  41. 41.

    Introducing the SVAC Dataset, supra note 11, at 421.

  42. 42.

    SVAC Dataset, supra note 9.

  43. 43.

    Introducing the SVAC Dataset, supra note 11, at 421.

  44. 44.

    Id. at 422.

  45. 45.

    Id.

  46. 46.

    Id. at 421.

  47. 47.

    Id. at 422.

  48. 48.

    Id.

  49. 49.

    Introducing the SVAC Dataset, supra note 11, at 421.

  50. 50.

    Id.

  51. 51.

    Id. at 422.

  52. 52.

    See Table 1 for summary of hypotheses.

  53. 53.

    Ratification of the Rome Statute is indicated by X=0.

  54. 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. 55.

    Results calculated using data from the SVAC Dataset, supra note 9.

  56. 56.

    Rome Statute, supra note 5.

  57. 57.

    Results calculated using data from the SVAC Dataset, supra note 9.

  58. 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. 59.

    Results calculated using data from the SVAC Dataset, supra note 9.

  60. 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. 61.

    Results calculated using data from the SVAC Dataset, supra note 9.

  62. 62.

    States Parties—Chronological List, ICC, available online (last visited Dec. 15, 2016).

    (Data taken from chronological list of ratifications).

  63. 63.

    See Table 2 for the list of states parties that comprised the dataset.

  64. 64.

    See Table 3 for a list of how many states were considered for each year on the X scale.

  65. 65.

    Results calculated using data from the SVAC Dataset, supra note 9.

  66. 66.

    Id.

  67. 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. 68.

    Results calculated using data from the SVAC Dataset, supra note 9.

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

  1. that the Court’s proceedings are expeditious, fair, and transparent at every stage;
  2. the ICC’s leadership and management are effective,
  3. the ICC ensures adequate security for its work and protection from those at risk from involvement with the Court; and
  4. 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. 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. 2.

    Id. at 1.

  3. 3.

    Id.

  4. 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. 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. 6.

    Id. at 2.

  7. 7.

    Id.

  8. 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. 9.

    First Report, supra note 1, at 5.

  10. 10.

    Id.

  11. 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. 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. 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. 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. 15.

    Dakolias, supra note 4, at 92.

  16. 16.

    Benjy Steinberg, The Prosecutor and the Paramount Chief, Vimeo (Mar. 26, 2015), available online.

  17. 17.

    First Report, supra note 1, at 6.

  18. 18.

    See, e.g., Chan & Simons, supra note 13.

  19. 19.

    See Clinton W. Brownley, Multi-Objective Decision Analysis: Managing Trade-Offs and Uncertainty (2013).

  20. 20.

    Id.

  21. 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. 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. 23.

    International Criminal Court, Encyclo. Britannica, available online (last visited Dec. 13, 2016).

  24. 24.

    See, e.g., Judicial Performance Evaluation, NCSC (2004), available online.

  25. 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. 26.

    Central Tendency Bias, Oxford Reference, available online (last visited Dec. 11, 2016).

  27. 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. 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. 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. 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. 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. 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. 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.

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. 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. 2.

    Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online.

  3. 3.

    Gambia Withdraws from International Criminal Court, Al Jazeera, Oct. 25, 2016, available online.

  4. 4.

    Chan, supra note 2.

  5. 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. 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. 7.

    Ramji-Nogales, supra note 5, at 6.

  8. 8.

    Id.

  9. 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. 10.

    Ramji-Nogales, supra note 5, at 7–8.

  11. 11.

    See Broude, supra note 9.

  12. 12.

    Id.

  13. 13.

    Ramji-Nogales, supra note 5, at 5.

  14. 14.

    Id.

  15. 15.

    Id. at 13.

  16. 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. 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. 18.

    See e.g. Ramji-Nogales, supra note 5, at 13.

  19. 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. 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. 21.

    Gibson, supra note 19, at 204.

  22. 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. 23.

    Gibson, supra note 19, at 204.

  24. 24.

    Id. at 204–205.

  25. 25.

    Rome Statute, supra note 6, Preamble

  26. 26.

    Chan, supra note 2.

  27. 27.

    Id.

  28. 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. 29.

    Id.

  30. 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. 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. 32.

    Id. at 123–24.

  33. 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. 34.

    Ford, supra note 5, at 410–11.

  35. 35.

    Id. at 458.

  36. 36.

    Id. at 414–416.

  37. 37.

    Id. at 462.

  38. 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. 39.

    Id.

  40. 40.

    Id.

  41. 41.

    Id.

  42. 42.

    Id. at 358.

  43. 43.

    Id.

  44. 44.

    Id.

  45. 45.

    Id. at 366.

  46. 46.

    Id.

  47. 47.

    Calderia & Gibson, supra note 28.

  48. 48.

    Id. at 356.

  49. 49.

    Id. at 363.

  50. 50.

    Id. at 362.

  51. 51.

    Id. at 363.

  52. 52.

    Id.

  53. 53.

    Id.

  54. 54.

    Id.

  55. 55.

    Id.

  56. 56.

    Id.

  57. 57.

    Id.

  58. 58.

    Id.

  59. 59.

    Id.

  60. 60.

    Id.

  61. 61.

    Id.

  62. 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. 63.

    Ramji-Nogales, supra note 5.

  64. 64.

    See e.g. Ramji-Nogales, supra note 5.

  65. 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. 66.

    Ramji-Nogales, supra note 5, at 47–48.

  67. 67.

    Id.

  68. 68.

    Id. at 47–49.

  69. 69.

    Singh et al., supra note 65.

  70. 70.

    Ramji-Nogales, supra note 5, at 47–48.

  71. 71.

    Singh et al., supra note 65.

  72. 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. 73.

    Id.

  74. 74.

    Id.

  75. 75.

    Ramji-Nogales, supra note 5, at 44.

  76. 76.

    Id.

  77. 77.

    Gambia Latest African Country to Withdraw from International Criminal Court, Voice of America (Oct. 26, 2016), available online.

  78. 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. 79.

    Id.

  80. 80.

    Gambia Latest African Country to Withdraw from International Criminal Court, supra note 77.

  81. 81.

    See Situation and Cases, ICC, available online (last visited Jul. 8, 2017).

  82. 82.

    Id.

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.

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.

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

  1. the end of the conflict with the FARC-EC,
  2. justice for the victims,
  3. solution to the illegal drug problem,
  4. better opportunities for rural development,
  5. open democracy and more participation, and
  6. 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. 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. 2.

    Id. art. 17.

  3. 3.

    See About, ICC, available online (last visited Jul. 8, 2017).

  4. 4.

    Office of the Prosecutor, International Criminal Court, The Principle of Complementarity In Practice (2003), available online.

  5. 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. 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. 7.

    See Report on Prosecutorial Strategy, supra note 5.

  8. 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. 9.

    Prosecutorial Strategy 2009–2012, supra note 8.

  10. 10.

    Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2016 (Nov. 14, 2016), [hereinafter Preliminary Exam 2016], available online.

  11. 11.

    Office of the Prosecutor, International Criminal Court, Policy Paper on Preliminary Examinations (Nov. 2013), available online.

  12. 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. 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. 14.

    Because the paramilitaries were for the most part demobilized by 2006, the allegations of war crimes do not concern them.

  15. 15.

    See Preliminary Exam 2016, supra note 10.

  16. 16.

    Nelson Camilo Sánchez León, Acceptance of International Criminal Justice: Country Study on Colombia (Int’l Nuremberg Principles Acad. 2016), available online.

  17. 17.

    See Preliminary Exam 2016, supra note 10.

  18. 18.

    Fatou Bensouda, Reflections from the International Criminal Court Prosecutor, 45 Case W. Res. J. Int’l L. 505, 507 (2012), available online.

  19. 19.

    L. 975/05, julio 25, 2005, Diario Oficial (Colom.).

  20. 20.

    See Colombia: The Justice and Peace Law, The Center for Justice & Accountability, available online (last visited Jul. 8, 2017).

  21. 21.

    See International Criminal Court, The Importance of Justice in Securing Peace (May 30, 2010), available online.

  22. 22.

    See Alejandro Chehtman, The ICC and its Normative Impact on Colombia’s Legal System, DOMAC (Oct. 16, 2011), available online.

  23. 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. 24.

    See id.

  25. 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. 26.

    See Colombia: The Justice and Peace Law, supra note 20.

  27. 27.

    See Corte Constitucional, Constitucional Claim Decision C-370 de 2006, available online.

  28. 28.

    See Corte Constitucional, supra note 25.

  29. 29.

    See In the Shadow, supra note 23.

  30. 30.

    See Sentencias Ley de Justicia y Paz, Dirección de Fiscalía Nacional Especializada de Justicia Transicional, available online (last visited Jul. 10, 2017).

  31. 31.

    See Preliminary Exam 2016, supra note 10.

  32. 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. 33.

    Office of the Prosecutor, International Criminal Court, Situation in Colombia Interim Report (Nov. 2012) [hereinafter Colombia Interim], available online.

  34. 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. 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. 36.

    See id.

  37. 37.

    Graciela Rodriguez-Ferrand, Colombia: Congress Approves Framework Law for Peace, Global Legal Monitor, Jun. 25, 2012, available online.

  38. 38.

    See Colombia Interim, supra note 33.

  39. 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. 40.

    Id. § 3.16.1.

  41. 41.

    See id. § 9.9.8.

  42. 42.

    See Boffey, supra note 35.

  43. 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. 44.

    See Conozca Los Puntos del Acuerdo, Acuerdo de Paz, available online (last visited Jul. 15, 2017).

  45. 45.

    See Acuerdo Final, supra note 43.

  46. 46.

    See id.

  47. 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. 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. 49.

    See Memorias de Guerra y Dignidad, supra note 13.

  50. 50.

    See Colombia Interim, supra note 33.

  51. 51.

    See Rome Statute, supra note 1, at art. 7.

  52. 52.

    See id. art. 8.

  53. 53.

    Colombia Interim, supra note 33.

  54. 54.

    See Office of the Prosecutor, International Criminal Court, Report on Preliminary Examination Activities 2012 (Nov. 2012), available online.

  55. 55.

    See Press Release, ICC, ICC Office of the Prosecutor Concludes Visit to Colombia (Apr. 19, 2013), available online.

  56. 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. 57.

    See Preliminary Exam 2015, supra note 32.

  58. 58.

    See Preliminary Exam 2016, supra note 10.

  59. 59.

    See Preliminary Exam 2015, supra note 32.

  60. 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. 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. 62.

    Kapur, supra note 60.

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. 1.

    About, ICC, available online (last visited Jun. 28, 2017).

  2. 2.

    Id.

  3. 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. 4.

    Cedric Ryngaert, Some Reflections on Securing the Arrest of ICC Fugitives, ICC Forum § 2 (Feb. 13, 2014), available online.

  5. 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. 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. 7.

    Dyilo Information, supra note 5.

  8. 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. 9.

    Id.

  10. 10.

    Id.

  11. 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. 12.

    Id.

  13. 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. 14.

    Situations Under Investigation, ICC, available online (last visited Jul. 15, 2017).

  15. 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. 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. 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. 18.

    Situations Under Investigation, supra note 14.

  19. 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).

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    Id.

  21. 21.

    Open Society Justice Initiative, The Trial of Laurent Gbagbo and Charles Blé Goudé at the ICC, 4 (Jan. 2016), available online.

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    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. 23.

    Id.

  24. 24.

    Id.

  25. 25.

    Situations Under Investigation, supra note 14.

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    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. 27.

    Id.

  28. 28.

    Id.

  29. 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. 30.

    Bosco Ntaganda, A Surprising Surrender, The Economist, Mar. 19, 2013, available online.

  31. 31.

    Jennifer Easterday, Mali Suspect Surrendered to the ICC, Int’l Just. Monitor, Sep. 28, 2015, available online.

  32. 32.

    André Klip & Göran Sluiter, Annotated Leading Cases of International Criminal Tribunals 154 (2001).

  33. 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. 34.

    Somini Sengupta & Marlise Simons, Omar al-Bashir Case Shows International Criminal Court’s Limitations, N.Y. Times, Jun. 15, 2015, available online.

  35. 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. 36.

    Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online.

  37. 37.

    Jessica Lincoln, Transitional Justice, Peace and Accountability 42 (2011).

  38. 38.

    The Fugitives, ICTY, available online (last visited Jul. 15, 2017).

  39. 39.

    Achievements, ICTY, available online (last visited Jul. 15, 2017).

  40. 40.

    Benjamin Ward, Ratko Mladic’s Arrest and International Justice, openDemocracy (May 31, 2011), available online.

  41. 41.

    History, ICTY, available online (last visited Jul. 15, 2017).

  42. 42.

    Id.

  43. 43.

    Id.

  44. 44.

    The Conflicts, ICTY, available online (last visited Jul. 15, 2017).

  45. 45.

    Christopher K. Lamont, International Criminal Justice and the Politics of Compliance, 181–182 (2010).

  46. 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. 47.

    Id. 208

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

  1. The Court’s proceedings are expeditious, fair and transparent at every stage;
  2. The ICC’s leadership and management are effective;
  3. The ICC ensures adequate security for its work, including protection of those at risk from involvement with the Court; and
  4. 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:

  1. the expeditiousness of proceedings;
  2. the fairness of proceedings; and
  3. 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

  1. the number of accused persons,
  2. their position(s) within a political or military hierarchy,
  3. the number and nature of the charges,
  4. the volume of evidence and likely number of witnesses,
  5. the complexity of the legal and factual arguments involved,
  6. whether the case raises significant novel legal or evidential issues,
  7. the geographical scope of the case (localized or extensive),
  8. 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

  1. between initial appearance and confirmation of charges hearing;
  2. between confirmation of charges and start of hearing phase;
  3. between the end of trial hearings and the issuance of the judgment pursuant to article 74 of the Rome Statute;
  4. 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;
  5. 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

  1. the number of accused persons,
  2. their position(s) within a political or military hierarchy,
  3. the number and nature of the charges,
  4. the volume of evidence and likely number of witnesses,
  5. the complexity of the legal and factual arguments involved,
  6. whether the case raises significant novel legal or evidential issues,
  7. the geographical scope of the case (localized or extensive),
  8. 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 compl