II. Conceptual Framework

With respect to the investigations in Yugoslavia, Rwanda, and the African States Parties, the prosecutors of international courts all had to make decisions that involved a degree of politicization, demonstrating that true independence may not be viable within the framework of internationally created courts.

A. Relevant Literature

1. NATO Bombing of Yugoslavia

The International Criminal Tribunal for the former Yugoslavia (“ICTY”) was established to investigate the NATO bombing campaign in Yugoslavia that occurred from March to June of 1999. While NATO’s bombing campaign was supposed to deter Serbian attacks on Albanians in Kosovar, the campaign resulted in numerous civilian casualties and controversy over the types of buildings targeted. Despite establishing a committee to initiate a preliminary investigation, the ICTY prosecutor ultimately declined to investigate the NATO bombings, likely due to the sensitivity involved in prosecuting NATO and the need to resolve complex issues, such as whether third party intervenors in humanitarian missions were bound by international criminal law.

Both Serbs and Albanians claim to have historic ties to Kosovo, and nationalistic sentiments would rise throughout the two World Wars due to shifts in territorial control of the region. Indeed, Kosovo was at the center of the first Serbian state, founded in the early 12th century, and held religious connotations to the Serbs, because the Serbian Orthodox Church’s Patriarchate relocated to the area in 1346.1 Simultaneously, Albanians believe that their ancestors resided in the area before the 6th century, thus predating the Serbs’ arrival.2 During World War I, Serbs consolidated and formed the Kingdom of Serbs, Croats, and Slovenes; the newly combined territories included Kosovo and would later be known as Yugoslavia.3 At this time, Serbs encouraged Albanians to emigrate to Turkey and often expropriated the lands of Albanians residing in Kosovo.4 After World War II, Serbia became one of Yugoslavia’s six federal republics and held control over Kosovo, which maintained a substantial Albanian population.5 As Kosovo eventually became a Socialist Autonomous Province of Yugoslav in 1974, effectively gaining a status equal to the other six republics with respect to economic decision-making and foreign policy, Serbs felt that they were losing control over Kosovo, especially since Albanians constituted the majority of the Kosovo population.6

Serbian nationalism dramatically escalated in the 1980s, culminating in outright conflict between the Serbs and Albanian Kosovars. Slobodan Milosevic, a Serbian politician, called for Serbian reunification with Kosovo and successfully revoked Kosovo’s newfound autonomy through political maneuvering in 1989.7 Thereafter, the Serbs claimed that Kosovo fully reintegrated into Serbia.8 In response to the Serbian assertion of control, a group of Albanian Kosovars established the Kosovo Liberation Army (“KLA”) by mid-1993 to stage guerrilla operations against the Serbs.9 After international intervention and a failed attempt at normalizing relations between the Serbs and Albanians through the Dayton Agreement in 1995, KLA violence against the Serbs in Kosovo continued to intensify.10 The KLA began assassinating Serbian officials in 1997 and 1998, while the Serbs viewed this as an opportunity to enforce order on the insurgent Albanian Kosovars, resulting in the deaths of over 1,500 Albanian Kosovars in 1998 alone.11

After another failed peace conference between the Serbs and Kosovars at Rambouillet in France, due to Serbian rejection of the proposed “Interim Agreement for Peace and Self-Government in Kosovo,” NATO was forced to exercise military force in deterring Serbian actions against Albanian Kosovars.12 From March 24 to June 10, 1999, NATO initiated a bombing campaign in Yugoslavia, which ultimately resulted in 500 civilian deaths and 800 injuries.13 Additionally, the air strikes did not immediately deter Serbian attacks on Albanian Kosovars; during NATO’s intervention, Serbs killed at least 4,400 Albanian Kosovars.14 Another 830,000 civilians fled Kosovo, resulting in the largest exodus of European refugees since World War II.15 Lastly, NATO had at least ninety incidents involving questionable choice of targets and means of attack, including bombing media buildings and the use of cluster bombs in areas of high population density.16

The ICTY initiated a preliminary investigation into the NATO intervention but ultimately declined to proceed with the investigation. In 1999, Louise Arbour, the ICTY prosecutor at the time, established a committee to determine whether to investigate controversial incidents pertaining to NATO’s bombing campaign of Yugoslavia.17 Arbour then refused to conduct an investigation, despite having the power to proceed with an investigation regardless of the committee’s findings.18 If Arbour had proceeded with the investigation, she would have needed to resolve issues such as whether international criminal law governed third party intervenors in humanitarian missions and whether radio stations can be considered military targets.19 Consequently, Arbour likely declined to investigate the bombings as a direct result of the legal and political ramifications NATO would face.20 Indeed, the outcome would likely be different if NATO forces were not the subject of the investigation; for example, the ICTY indicted Serbian leaders in 1995 for the bombing of Sarajevo, which resulted in a number of civilian casualties similar to NATO’s bombing of the Radio-Television Station.21

2. Rwandan Genocide

In 1995, the International Criminal Tribunal for Rwanda (“ICTR”) was established to investigate and prosecute the Hutu genocide of Tutsis in Rwanda, which systematically occurred beginning in April 1994. However, with the Tutsi counterattack, which culminated in the overthrow of the Hutu regime in Rwanda in July 1994, evidence also existed of alleged Tutsi atrocities against Hutus, which included mass executions and assassinations. However, the ICTR’s chief prosecutor declined to investigate possible Tutsi crimes, because he needed Tutsi cooperation in order to prosecute the Hutus, who arguably committed greater atrocities; investigating both sides of the Rwandan genocide would only obstruct the legal process, due to diminished cooperation by both the Tutsis and the Hutus.

While the Tutsis and Hutus in Rwanda always differed in phenotypes, leading to conflict between the two ethnic groups, such conflict was greatly exacerbated due to colonization in the early 20th century. After arriving in Rwanda in 1916, Belgian colonists created classifications of varying ethnic groups using identity cards and considered the Tutsis to be ethnically superior to the Hutus.22 Under Belgian rule, the Tutsis’ job and educational opportunities far surpassed the Hutus’, ultimately resulting in Hutu riots against the Tutsis in 1959, during which over 20,000 Tutsis were killed.23 Conflict between the Hutus and Tutsis continued, even after Rwanda achieved independence from Belgium in 1962, as the Hutus gained power in the absence of the Belgians and framed the Tutsis as scapegoats responsible for issues within the country.24

The deterioration of Rwanda’s economy and subsequent blame on the minority Tutsi population would ultimately lead to Hutu-propagated genocide. Rwanda entered a trade deficit as coffee prices fell beginning in 1986, and the economic crisis was blamed on the Tutsis.25 Simultaneously the Rwandan Patriotic Front (“RPF”), consisting mostly of Tutsi refugees, formed in Uganda; the RPF’s goal was to overthrow Juvenal Habyarimana, the incumbent Hutu president of Rwanda, and return to their homeland.26 In response, the Habyarimana regime framed all Tutsis as allies of the RPF and as enemies of the Rwandan state through systematically spreading anti-Tutsi propaganda.27 The downing of Habyarimana’s plane in April 1994 was the catalyst of the Tutsi massacre, though it remains unclear as to who was responsible for shooting down the aircraft.28 The presidential guard immediately authorized retribution against the Tutsis in the form of mass murders.29 Indeed, civilians were encouraged to take part in the annihilation of Tutsis and were even given incentives, such as land or money, to kill.30 Simultaneously, RPF forces continued their assault on Rwandan governmental forces, allegedly through methods including various assassinations of political figures, mass murders, and killing prisoners of war.31 The RPF finally achieved victory in July 1994 and declared a ceasefire after the Rwandan government collapsed, with Hutu forces stateless and scattered into the Zaire region (modern day Democratic Republic of the Congo).32

The ICTR was tasked with investigating the Rwandan genocide in 1995, though chief prosecutor Richard Goldstone refused to investigate alleged RPF crimes due to a need to preserve the legitimacy of the ICTR through eliciting cooperation from the Tutsi-governed Rwanda. Goldstone declined to investigate the alleged RPF crimes, because he believed that the United Nations Security Council created the ICTR to investigate and prosecute the Hutu genocide of Tutsis.33 Further, Goldstone contended that the ICTR had little, if any, sufficient evidence of the RPF crimes, though, in actuality, concrete evidence did exist from 1994 onwards.34 Goldstone’s decision to abstain from initiating an investigation was likely due to his awareness that Rwanda under the Tutsi rule may cease cooperation with the ICTR if he chose to commence with the investigation.35 By investigating both sides of the Rwandan conflict, Goldstone would likely fail to make progress in prosecutions, because, as subjects of investigations, neither side would have an incentive to cooperate with the ICTR.36 Indeed, when the ICTR finally decided to investigate RPF crimes in December 2000, led by prosecutor Carla Del Ponte, the Rwandan government successfully undermined the investigation and credibility of the ICTR by criticizing the ICTR’s failure to timely prosecute perpetrators of the Tutsi genocide.37

3. African Bias

Given the ICC’s history of investigating and indicting African individuals in the past two decades, many critics of the ICC assert that the Court has an implicit bias against Africans and is simply an extension of Western imperialism. Such accusations have prompted the ICC to attempt to move away from continued prosecution of African crimes and individuals, though serious atrocities are nevertheless investigated. For example, the ICC chief prosecutor called for an investigation of Burundi president Pierre Nkurunziza because of Nkurunziza’s alleged crimes in eliminating political opponents. However, in response to the investigation, Burundi voted to withdraw from the ICC, thus threatening to undermine the ICC’s legitimacy and potentially setting a precedent of countries withdrawing from the Court’s jurisdiction when faced with an adverse investigation.

Since the ICC began operating in 2002, the Court made thirty-one indictments against African individuals, despite how African states only constitute thirty-four out of the one hundred twenty-four States Parties.38 The focus on Africa has partly resulted from the ICC’s jurisdictional limitations; the ICC can only investigate crimes that occurred in or were perpetrated by countries that ratified the Rome Statute, which established the ICC.39 The ICC cannot investigate other countries without a referral by the United Nations Security Council.40 Additionally, the ICC often cannot investigate or prosecute major nonmember countries, such as the United States or China, because of their ability to veto Security Council referrals.41 Consequently, given such limitations, the ICC is often forced scrutinize only African countries, creating a perceived bias against African States Parties. To combat the sentiments of unfairness, ICC prosecutors have already begun moving away from African investigations and prosecuting specific types of war crimes that were typical in atrocities that occurred in Africa.42

In April 2015, Pierre Nkurunziza, Burundi’s incumbent president, planned to run for an unprecedented and unconstitutional third term as president, sparking violent protests within the country.43 After Nkurunziza’s reelection in July 2015, violence continued, with security forces killing approximately 80 protestors and over 170,000 Burundian refugees fleeing the country.44 Prominent political individuals from both the ruling party and the opposition, such as General Adolphe Nshimirimana, the country’s security chief, and Pierre Claver, human rights activist, were killed in attacks that continued through August 2015.45 Numerous political dissidents were detained or executed by the ruling party, and journalists who were critical of the regime became targets as well.46 As the death toll approached 430, with 300,000 displaced Burundians, ICC’s chief prosecutor Fatou Bensouda decided to proceed with an investigation into the events surrounding Nkurunziza’s bid for reelection in April 2015.47 In response to the ICC investigation into possible genocide and crimes against humanity, amongst other alleged crimes, Burundi’s lower house of parliament voted to withdraw from the ICC in October 2016.48 While Bensouda may have a legitimate reason and need to investigate the crimes perpetrated by the ruling party, other African countries and critics view the investigation to be a continuation in the ICC’s bias against African countries, which may lead to more withdrawals by African countries.49

B. Proposed Contribution

Prosecutorial independence is a significant issue for the ICC, because of the contrasting viewpoints regarding independence and politicization. While a degree of politicization is necessary in the decision-making process with respect to investigations, critics of the Court believe that such political undertones within investigations lead to a lack of legitimacy and a view that the ICC is merely a tool for Western powers to exert influence over countries without significant international influence.

The theory of balancing prosecutorial discretion provides the view that the Prosecutor can navigate between independence and politicization to the benefit of the ICC. In addition to using the Rome Statute and the Rules of Procedure and Evidence, the Prosecutor can draft its own guidelines to ensure transparency and uniformity in investigating cases. Additionally, given the inherently political nature of the ICC, the Prosecutor may need to take into account the legal merits of the case and ensure cooperation by considering the interests of outside parties to an extent allowed by goals of promoting international peace.

III. Theory of Balancing Prosecutorial Discretion

At the core of the debate regarding prosecutorial discretion lies the issue in which, the ICC Prosecutor should have discretion in the interest of justice, but simultaneously, an equally valid argument exists that the Prosecutor should maintain true neutrality by declining to consider the interests of outside parties.

A. The Necessity of Politicization

The ICC Prosecutor’s decisions are inherently political based on the establishment of the Court and the interactions between the Office of the Prosecutor and various States Parties. Though States Parties agreed to subject themselves to the Court’s jurisdiction, they can also withdraw support from the Court, thus gaining leverage against the Prosecutor’s selection of crimes to investigate. Importantly, self-referrals and referrals by the United Nations Security Council also constitute the necessity of prosecutorial politicization because of the interplay between soliciting cooperation from States Parties and the aspiration to proceed with impartiality.

The ICC’s legitimacy and continued survival depends largely on its reception within the international community subjected to the ICC’s rulings, which often need to be made based on the sociopolitical nuances within each region of the world. States Parties, nongovernmental organizations, and other international actors are all evaluators of the ICC’s selection of cases and decisions to proceed with investigations.50 With respect to granting the ICC legitimacy, States Parties are particularly relevant, because they can withdraw support from the Court and perhaps even seek the Court’s destruction.51 States Parties are additionally crucial, because, by subjecting themselves to the Court’s jurisdiction through ratifying the Rome Statute, they provide both evidence and defendants to prosecute.52 Indeed, the ICC may also need to take into account regional differences in the process of successfully prosecuting a case. Advocates of the ICC typically believe in the merits of enforcing human rights law based on a universal baseline of legal justice.53 However, critics believe that such universalism ignores regional values and autonomy in resolving domestic issues.54 Notably, African leaders who once supported the ICC now believe that the ICC’s continued focus on investigating crimes in Africa has prohibited African states from resolving such crimes on their own.55

The ICC generally allows self-referrals, which the Court views as a sign of commitment to justice, to initiate investigations; however, the Court has a tendency to grant immunity to the referring party due to concerns of facilitating cooperation.56 In 2003, the ICC accepted Uganda’s self-referral regarding a conflict between the Lord’s Resistance Army (“LRA”) and the Uganda People’s Defense Forces (“UPDF”), the government’s military forces.57 The ICC then indicted five LRA leaders for various crimes, such as rape and using child soldiers.58 However, the ICC’s Office of the Prosecutor has not indicted any individuals within the Ugandan government, which committed similar atrocities.59 Prosecutor Luis Moreno Ocampo contended that UPDF’s crimes were less severe in comparison to LRA’s crimes, despite how the UPDF’s actions of forced population displacement and use of child soldiers clearly violated international law.60 Prosecutors in the ICC appear to grant immunity to the referring party, particularly when their crimes are relatively less severe than the defendants’.61 Though detrimental to its legitimacy, the Court fears that prosecuting the referring party would chill cooperation and impede prosecutorial efficiency.62

Simultaneously, the United Nations Security Council can refer cases to the ICC for investigation, though the two organizations working together presents an image of an assertion of Western political strength against less-powerful states. The Security Council referred Sudan to the ICC in 2005, since the ICC did not have jurisdiction over the country; Sudan did not ratify the Rome Statute to join the ICC as a State Party.63 The ICC subsequently investigated senior politicians, such as President Omar al-Bashir, within the Sudanese regime for perpetrating crimes in Darfur.64 Critics view the ICC and the Security Council as tools that powerful countries use to initiate regime change, under the guise of addressing atrocities including genocide.65 As African countries pushed back against the ICC’s willingness to investigate African regime elites by withdrawing cooperation, the Security Council has been hesitant to pressure the ICC to investigate African atrocities.66

B. The Necessity of Independence

Conversely, prosecutorial independence is necessary based on budgetary restrictions within the ICC as well as an overarching concern for fairness in investigations. Prosecutors should be able to select and determine whether to proceed with investigations without the influence of outside political interests. Further, independent selection is a crucial tool for the Prosecutor to have, because of the limited funds in prosecuting a case. Such independence will lend credibility to the court by ensuring that the Prosecutor is not bound by the interests of any third-party group or institution.

The International Law Commission’s draft treaty, which would later be known as the Rome Statute, provided prosecutors with proprio motu powers, which allowed for broad prosecutorial discretion in initiating investigations.67 During the Rome Statute’s negotiations, nongovernmental organizations and delegates fought to support prosecutorial discretion, because they believed that a prosecutor subordinate to other political institutions would undermine the legitimacy and independence of the ICC.68 The ultimate goal of the ICC is to guarantee that all States Parties are entitled to a fair and impartial tribunal, and that the Prosecutor is not bound by the interests of any outside parties.69

Case investigation under limited budgetary circumstances additionally demonstrate the need for prosecutorial discretion in investigations. In theory, the Prosecutor should not engage in discrimination and selective prosecution under a system in which defendants are equally-bound by international criminal law.70 However, because of the heavy caseload that courts often face, prosecutors with discretion can choose to be selective in their investigations to facilitate efficiency in the legal system.71 Indeed, restraints on resources, logistics, and diplomacy place an immediate limit on the Prosecutor’s ability to investigate all meritorious cases.72 While the Rome Statute calls for the ICC Prosecutor to “investigate incriminating and exonerating circumstances equally,” prosecutorial discretion provides a buffer against the directive to investigate, which likely cannot be achieved given the aforementioned restraints.73 Further, the Prosecutor’s selection of cases are achieved through an application of four factors: scale, nature, manner of commission, and impact of crimes; such malleable factors strengthen the Court’s legitimacy by allowing the Prosecutor to investigate cases based on the interests of justice rather than by a universal standard of Western justice.74 The Prosecutor thus has the power to influence policy and the overall direction of the ICC, based on the ability to selectively screen and investigate crimes.

C. Striking a Balance Between Politicization and Independence

A balanced approach to investigation can entail specific prosecutorial guidelines in addition to the guidelines set forth by the Rome Statute and the Rules of Procedure and Evidence. Moreover, the ICC Prosecutor can consider additional factors, including investigating cases likely to win on legal merits and investigating crimes at all levels of responsibility (e.g., scrutinizing subordinates as well as top-level leaders who committed atrocities under international law).

1. Specificity in Prosecutorial Guidelines

The Rome Statute and the Rules of Procedure and Evidence provides guidance in investigating and prosecuting cases, which frames the Prosecutor’s proprio motu powers.75 Specifically, when initiating investigations, the Prosecutor must consider the interest of justice alongside the gravity of the crime and the victims’ interests. The concept of interest of justice, however, remains elusive and can be construed in a variety of ways, from retributive justice to restorative justice.76 Further, neither the Rome Statute nor the RPE enumerates an exhaustive list of factors to consider when deciding whether to proceed with an investigation.77 To counter the inherent ambiguity in the official guidelines, the Prosecutor may draft and publicize a set of prosecutorial guidelines to be applied to every investigation; for example, the Prosecutor can enumerate the specific factors to be considered when initiating an investigation. The publicized guidelines would consequently provide a level of transparency and uniformity in arriving at a decision.

The Prosecutor can also consider complementarity, in which national courts have priority in prosecuting crimes.78 Under Article 17 of the Rome Statute, the International Criminal Court will assume responsibility to investigate and prosecute based on factors such as an unwillingness of the national court to prosecute; a collapse of the judiciary or unjustified delays all constitute unwillingness or inability to prosecute.79 However, complementarity remains an ambiguous consideration, because the Rome Statute and other guidelines do not provide for a specific guidance or timeline as to when national jurisdiction fails.80 For example, it remains unclear whether a States Party’s promise to investigate a crime can constitute a bar against ICC intervention.81 To resolve this issue, the Prosecutor can, similarly, propose specific criteria to determine whether national courts have truly failed to investigate; such criteria would also involve a determination of whether promises to investigate are sufficient.

2. Additional Considerations

In addition to drafting prosecutorial guidelines and considerations for complementarity, the Prosecutor can account for less tangible issues, such as focusing on cases likely to win on legal merits and facilitating cooperation with States Parties, as needed for investigations.

When choosing to conduct investigations and issue indictments, the ICC Prosecutor should take a reasonable amount of time and focus on crimes that can succeed on legal merits. Rather than serving as a political tool for immediately responding to global atrocities, the Prosecutor should focus on using time to deliberate appropriately and investigate legal grounds for indictment.82 By having an investigation rooted in legal principles, the Court will have a better chance of defending its decisions against critics who contend that the Prosecutor was tainted by outside political interests.83 Further, sufficient investigation will allow the Court to bring a strong case against actors truly responsible for the crimes.84 Indeed, a legally sound decision accomplished through exhaustive deliberation is preferable to an immediate one driven by international outrage calling for punitive measures.

Secondly, the Prosecutor’s responsibility for investigating those responsible for atrocities under international law can focus on both top-level actors as well as subordinates on a secondary level. By casting a broader net to investigate potential indictees, the Prosecutor can minimize the appearance that the Court is simply encouraging regime change based on the preferences of Western powers. Additionally, the Prosecutors are likely able to solicit cooperation from top-level actors when investigating subordinates, while top-level actors may be unwilling to cooperating with an examination of their own possible crimes.85

Lastly, given the ICC’s need for cooperation to function, the Prosecutor should formulate decisions that do not actively oppose the interests of States Parties directly cooperating with the Prosecutor. The ICC itself was ratified by countries that agreed to subject themselves to the jurisdiction of the Court. Moreover, during investigations, the Court requires the cooperation of countries to furnish evidence. By disregarding the interests of the countries involved in the judicial process, countries may refuse to cooperate and, instead, withdraw support from the ICC to hinder the investigations. Indeed, African countries in recent years have already threatened withdrawal due to the belief that the Prosecutor has a bias against Africans, due to the high number of indictments and investigations against African individuals.

IV. Conclusion

This comment explores the possible balance between discretion and politicization in the Office of the Prosecutor. Given the inherently political nature of the ICC, the Prosecutor must be political in its investigations to a certain extent by considering the interests of States Parties and other major world powers to ensure the survival of the ICC. However, the Prosecutor can also promote a degree of independence by publishing more specific guidelines pertaining to complementarity action and factors involving the interests of justice when initiating investigations.

However, the ongoing threats of withdrawals of African States Parties, along with actual withdrawals (i.e., Burundi), may generate a significant change in Prosecutorial discretion in the years to come. Indeed, this comment does not predict the trajectory of Prosecutorial discretion when faced with a lack of support from a significant number of States Parties.

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

1. 1.

   Carole Rogel, Kosovo: Where It All Began, 17 Int’l J. Pol. Culture Soc. 167, 169 (2003), JSTOR paywall, SpringerLink paywall. ↩

2. 2.

   Id. ↩

3. 3.

   Id. at 170. ↩

4. 4.

   Id. ↩

5. 5.

   Id. at 171.

   (Due to the Albanian population in the area, Kosovo was established as an “autonomous region,” which theoretically promoted equality between the different ethnic groups within Yugoslavia at a federal level). ↩

6. 6.

   The Kosovo Conflict and International Law: An Analytical Documentation 1974–1999, 1 (Heike Krieger ed. 2001), [hereinafter Kosovo Conflict and International Law]; Rogel, supra note 1, at 171. ↩

7. 7.

   Kosovo Conflict and International Law, supra note 6, at 522; Rogel, supra note 1, at 172.

   (The Assembly of Kosovo met on March 23, 1989 to vote on amendments governing the Kosovo’s autonomy, granted in 1974. Despite how a majority of Kosovo Albanian delegates abstained from voting to deny the Assembly the necessary two-thirds majority, the President of the Assembly nevertheless declared that the amendments passed). ↩

8. 8.

   Rogel, supra note 1, at 174. ↩

9. 9.

   Id. at 175. ↩

10. 10.

    Id. at 175; Edward Morgan-Jones, Neophytos Loizides & Djordje Stefanovic, 20 Years Later, This is What Bosnians Think About the Dayton Peace Accords, Wash. Post, Dec. 14, 2015, available online.

    (The Dayton Agreement failed to effectively address the conflict in Kosovo. Indeed, the United Nations merely threatened to maintain sanctions against Belgrade unless Serbia directly established dialogue with Kosovars. The broader, primary focus of the Dayton Agreement was, instead, to address the ethnic cleansing perpetrated by the militaries of the Orthodox Bosnian Serbs, the Catholic Bosnian Croats, and the Muslim Bosniacs). ↩

11. 11.

    Rogel, supra note 1, at 174; NATO’s Role in Relation to the Conflict in Kosovo, NATO, Jul. 15, 1999, available online, (last visited Jul. 21, 2017). ↩

12. 12.

    Rogel, supra note 1, at 177. Mark Webber, The Kosovo War: A Recapitulation, 85 Int’l Aff. 447, 450 (Apr. 28, 2009), Oxford Academic paywall. ↩

13. 13.

    Anne-Sophie Massa, NATO’s Intervention in Kosovo and the Decision of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia Not to Investigate: An Abusive Exercise of Prosecutorial Discretion?, 24 Berkeley J. Int’l L. 610, 611 (2006), available online. ↩

14. 14.

    Webber, supra note 12, at 451. ↩

15. 15.

    Id. ↩

16. 16.

    Massa, supra note 13, at 613–14. ↩

17. 17.

    Id. at 633. ↩

18. 18.

    Id. at 643. ↩

19. 19.

    Id. at 644. ↩

20. 20.

    Id. at 645. ↩

21. 21.

    Id. ↩

22. 22.

    Rwanda: How the Genocide Happened, BBC, May 17, 2011, available online. ↩

23. 23.

    Id. ↩

24. 24.

    Id. ↩

25. 25.

    Helen M. Hintjens, Explaining the 1994 Genocide in Rwanda, 37 J. Modern Afr. Stud. 241, 256 (1999), available online.

    (The Tutsis often found employment as traders and merchants, occupations that the Hutus viewed as related to the economic meltdown). ↩

26. 26.

    Rwanda: How the Genocide Happened, supra note 22. ↩

27. 27.

    Hintjens, supra note 25, at 264–66.

    (The Habyarimana regime effectively used media to propagate false reports of RPF plots and attacks on Hutus in Rwanda). ↩

28. 28.

    Rwanda: How the Genocide Happened, supra note 22. ↩

29. 29.

    Id. ↩

30. 30.

    Id. ↩

31. 31.

    Paul Rusesabagina, Compendium of RPF Crimes—October 1990 to Present: The Case for Overdue Prosecution (Nov. 2006), available online.

    (The RPF allegedly used similar methods throughout the early 1990s against the Habyarimana regime). ↩

32. 32.

    Rwanda: How the Genocide Happened, supra note 22. ↩

33. 33.

    Victor Peskin, Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 4 J. Hum. Rts. 213, 222 (2005), available online. ↩

34. 34.

    Id. ↩

35. 35.

    Id. at 223. ↩

36. 36.

    Id. ↩

37. 37.

    Id. at 224. ↩

38. 38.

    Thierry Cruvellier, The ICC, Out of Africa, N.Y. Times, Nov. 6, 2016, available online. ↩

39. 39.

    Alexandra Zavis & Robyn Dixon, Only Africans Have Been Tried at the Court for the Worst Crimes on Earth, L.A. Times, Oct. 23, 2016, available online. ↩

40. 40.

    Id. ↩

41. 41.

    Id. ↩

42. 42.

    Cruvellier, supra note 38. ↩

43. 43.

    Patricia Daley & Rowan Popplewell, The Appeal of Third Termism and Militarism in Burundi, 43 Rev. Afr. Pol. Econ. 648, 648 (2016), Taylor Francis paywall. ↩

44. 44.

    Id. ↩

45. 45.

    Press Release, UN Office of the High Commissioner for Human Rights, Burundi: UN Investigation Urges Strong Action in Light of Gross, Widespread and Systematic Human Rights Violations (Sep. 20, 2016), [hereinafter Burundi 2016 OHCHR], available online; Yolande Bouka, The True Price of Nkurunziza’s Third Term, Inst. Sec. Studies , Aug. 24, 2015, available online; Conor Gaffey, After Burundi, Which Other African States Could Abandon the ICC?, Newsweek, Oct. 19, 2015, available online.

    (Burundi 2016 OHCHR noted that the Imbonerakure, the ruling party’s youth wing, committed mass executions alongside the country’s security forces. Most of the victims were individuals opposed to Nkurunziza. The Nkurunziza regime additionally torture of political dissidents and were subject to “attachment of weights to victims’ testicles, the crushing of fingers and toes with pliers, progressive burning with a blow torch, and being forced to sit in acid or on broken glass or nails.”). ↩

46. 46.

    Burundi 2016 OHCHR, supra note 41. ↩

47. 47.

    Gaffey, supra note 41. ↩

48. 48.

    Burundi moves to quit the International Criminal Court, Al Jazeera, Oct. 12, 2016, available online.

    (94 out of 110 legislators were in favor of withdrawing from the ICC, with 2 opposing and 14 abstaining). ↩

49. 49.

    Gaffey, supra note 41.

    (Sudan has already asserted that it is not under ICC jurisdiction, because the country never ratified the Rome Statute, despite signing the statute in 2000. Moreover, Ugandan president Yoweri Museveni has threatened withdrawal, while voicing concerns that the ICC was merely a Western “tool to target” Africa). ↩

50. 50.

    Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265, 268 (2012), available online. ↩

51. 51.

    Id. ↩

52. 52.

    Id. ↩

53. 53.

    Tatiana E. Sainati, Divided We Fall: How the International Criminal Court Can Promote Compliance with International Law by Working with Regional Courts, 49 Vand. J. Transnat’l L. 191, 209 (2016), available online, archived. ↩

54. 54.

    Id. at 210. ↩

55. 55.

    Id. at 213. ↩

56. 56.

    Alana Tiemessen, The International Criminal Court and the Politics of Prosecutions, 18 Int’l J. of Hum. Rts. 444, 444 (2014), Taylor Francis paywall ↩

57. 57.

    Id. at 451. ↩

58. 58.

    Id. ↩

59. 59.

    Id. ↩

60. 60.

    Id. ↩

61. 61.

    Id. at 454. ↩

62. 62.

    Id. ↩

63. 63.

    Id. at 455. ↩

64. 64.

    Id. ↩

65. 65.

    Id. at 456. ↩

66. 66.

    Id. at 455. ↩

67. 67.

    Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 Am. J. Int’l L. 510, 512 (2003), available online. ↩

68. 68.

    Id. at 514. ↩

69. 69.

    Id. at 515. ↩

70. 70.

    deGuzman, supra note 50, at 293. ↩

71. 71.

    Danner, supra note 67, at 518. ↩

72. 72.

    Id. at 519–20.

    (ICC’s first budget provided only €3,961,200 to the Prosecutor, out of a total of €30,893,500). ↩

73. 73.

    Id. at 519.

    (A detriment to the Prosecutor’s denial to investigate, however, is the presumption that the defendant is an innocent party, even if the case is actually meritorious). ↩

74. 74.

    deGuzman, supra note 50, at 295. ↩

75. 75.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 15, available online.

    (“If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.”)

    International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 48 (2013), available online, archived.

    (“In determining whether there is a reasonable basis to proceed with an investigation under article 15(3) the Prosecutor shall consider the factors set out in Article 53, paragraph 1(a) to (c) [whether a crime within the jurisdiction of the Court has been committed […] and whether an investigation would not be in the interests of justice].”)

    Vincent Sarara Robi, Prosecutorial Discretion Within the International Criminal Court (ICC): A Critical Legal Analysis and Preliminary Reflections on ICC Intervention into Kenya, 1, 32–33 (undated, unpublished manuscript), available online. ↩

76. 76.

    Robi, supra note 75, at 44. ↩

77. 77.

    Id. ↩

78. 78.

    Id. at 36.

    (“[The Office of the Prosecutor’s policy states:] ‘complementarity involves an examination of the existence of relevant national proceedings in relation to the potential cases being considered for investigation by the Office, […] taking into consideration the Office’s policy to focus on those who appear to bear the greatest responsibility for the most serious crimes.’”). ↩

79. 79.

    Id. ↩

80. 80.

    Id. at 37. ↩

81. 81.

    Id. ↩

82. 82.

    Allen S. Weiner, Prudent Politics: The International Criminal Court, International Relations, and Prosecutorial Independence, 12 Wash. U. Global Stud. L. Rev. 545, 555 (2013), available online. ↩

83. 83.

    Id. ↩

84. 84.

    Id. at 556. ↩

85. 85.

    Id. ↩

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

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

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

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

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

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

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

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

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

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

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

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

II. The Performance Indicators made by the Court

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

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

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

1. The pool of people that will be examined—This group will include witnesses and staff (from this point on, the term group will refer to the witnesses and not to the staff.) As defined above, witnesses would be individuals that voluntarily agreed to cooperate with the Court and that were chosen by it.

2. The character and scope of the data examined—This criterion includes only security incidents or incidences that led to actual harm.

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

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

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

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

1. The pool of people that will be examined—The right pool of people should not only contain the actual witnesses, but it should be broader and include potential witnesses. As described above, those potential witnesses would be on any stage of communication with the court, until the final diction of the joint team and their final voluntary agreement to become witnesses.

2. The character and scope of the data examined—The data examined should include subjective characters in addition to the current more objective ones. This way the scope of the data would be broader. What I refer to as subjective characters could be the potential witness or the actual witness lack of sense of security or security concerns. Those concerns might lead a potential witness to decide not to become a witness, or for a witness to hesitate before deciding to become one.

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

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

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

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

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

1. No security provided—In this scenario, the level of security that the ICC provides is so low that no person is willing to become a witness.

   1. Under the current version of the indicators—the performance of the Court in terms of security is spotless, since no security incidents or incidences that led to actual harm was made. Of course this outcome is extremely erroneous and does not give the full picture of the Court performance and effectiveness security-wise.

   2. Under the offered version of the indicators—the potential witnesses would be included and their fear of safety is legitimate data to be used. This data provides the ICC with the full picture regarding its ineffectiveness, and its problematic performance in terms of security.

2. Perfect security provided—In this scenario, the level of security that the ICC provide is so high that there are no security incidents, incidences that led to actual harm, or potential witnesses that decided not to become witnesses because of security concerns. This is the only scenario where using the offered version of the indicators will not be needed, since using the current version of them leads to accurate results and reflects the true effectiveness and performance of the court in terms of security.

3. Diverse levels of security provided—In this scenario, the levels of security provided by the ICC are not fixed or equal, but are influenced by different factors, like the conflicts regimes, the scope of the potential threat, the identity of the witness or potential witness, and more. Unlike the first two scenarios that were rather imaginary, the last one is probably similar to the real level of security provided by the ICC.

   1. Under the current version of the indicators—As to the witnesses, the ICC will receive a full picture regarding its ability to handle objective threats. It will not receive any subjective information that will indicate whether those witnesses had any doubts whether to become ones. Since this scenario is not identical to the second scenario (Perfect security provided), the data regarding fears and doubts could have helped the Court evaluate its performance even when it comes to witnesses that agree to cooperate with it.

      The main issue regarding this scenario and the current version of the indicators is involving potential witnesses. At this point I would like to perform a mental exercise. In terms of security, the main—and perhaps the only—reason for a potential witness to decide not to become a witness is because he or she will think that the security offered to them by the Court is not adequate. The potential reasons for that will be discussed extensively below, but it could be over relatively proven facts or over a gut feeling.

      From this perspective, the potential witness from scenario 1 (No security provided) and the potential witness from this scenario are very similar. The main difference between these two is the instance of the Courts shortage of protection and the percentage of those potential witnesses out of the population approach by the Court as a whole. The lack of trust in the Court’s ability to supply adequate security remains the same.

      This is why I think that, just as it was obvious on the first scenario that the current version of the indicators would lead to an extremely erroneous outcome, it should be obvious that this third scenario leads to a similarly erroneous outcome.

   2. Under the offered version of the indicators—Once the Court includes potential witnesses alongside the witnesses in its measure of security and effectiveness, it would be able to evaluate its true performance (or at least receive a better evaluation of it).

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

1. Sampling selection bias40—This kind of bias is the classical one. Its definition is identical to the one given above.41 In this case and as discussed, the bias arises as a result of the Court’s decision regarding who to sample (witnesses) and who to leave outside of the sampling group (potential witnesses).42 The outcome of this bias will be, as described, a partial result, and therefore an incorrect one.

2. Self-selection sampling bias—As it might be implied from its name, this kind of bias can be caused as a result of the behavior or the decisions of the subjects themselves.43 The dictionary definition of self-selection sampling bias is:44

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

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

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

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

   Those reasons could lead to a problematic outcome:

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

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

IV. A Proposal for a Collecting Data Tool

A. The collection of data challenge

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

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

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

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

B. The surveys solution

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

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

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

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

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

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

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

C. Highlights regarding the content of the survey

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

1. The first question to be asked in the survey should eliminate those potential witnesses who decided not to became witnesses for reasons other than security concerns.50 While the general willingness of potential witnesses to cooperate with the Court is important in order to understand its performance, the aim of this survey is to reserve information regarding the Court’s security performance.

2. In order for the Court to fully understand why a potential witness decided not to become a witness, it needs more than the security title. The survey should narrow down the specific reason that caused potential witnesses to feel that they cannot receive enough protection from the Court. The Court needs to know whether the fear was based on an actual threat on their life or was it a non-tangible fear. Did they expect an immediate or a more drastic protection measure than the ones offered to them?

   These questions—and a lot more—should be addressed to the potential witnesses. Identifying the source of the fear is a first step to understanding the Court performance in terms of security and maybe could even lead to the Court taking measures to improve itself.

3. The survey should include questions regarding the background of the potential witnesses. Those questions are needed in order to build a better database of witness indicators. Those indicators will allow the Court to identify in advance potential witnesses that possibly will subsequently develop security concerns that will lead them to not cooperate with the Court.

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

Conclusion

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

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

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

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

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

1. 1.

   Assembly of States Parties, Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/13/Res.5 at Annex I, ¶7(b) p.47 (Dec. 17, 2014), available online. ↩

2. 2.

   International Criminal Court, Report of the Court on the Development of Performance Indicators for the International Criminal Court, 1 (Nov. 12, 2015), [hereinafter First Report], available online, archived. ↩

3. 3.

   Id. at 6. ↩

4. 4.

   Id. ↩

5. 5.

   International Criminal Court, Second Court’s Report on the Development of Performance Indicators for the International Criminal Court (Nov. 11, 2016), [hereinafter Second Report], available online, archived. ↩

6. 6.

   International Bar Association, Witnesses before the International Criminal Court: An International Bar Association International Criminal Court Programme Report on the ICC’s Efforts and Challenges to Protect, Support and Ensure the Rights of Witnesses, 1 (Jul. 2013), available online ↩

7. 7.

   Chris Mahony, The Justice Sector Afterthought: Witness Protection in Africa, Inst. Sec. Studies, 17 (2010), available online. ↩

8. 8.

   Witnesses Before the ICC, supra note 6, at 14. ↩

9. 9.

   Id. at 12. ↩

10. 10.

    Id. ↩

11. 11.

    Dermot Groome, No Witness, No Case: An Assessment of the Conduct and Quality of ICC Investigations, 3 Penn St. J. L. Int’l Aff. 1, 3 (Apr. 2014), available online.

    (“On my first day as a prosecutor in the Manhattan District Attorney’s Office, my bureau chief, Warren J. Murray Jr., began our training by introducing us to a few of his well-known prosecutorial maxims or ‘rules.’ Rule number one, his first and most important was: ‘No witness—no case.’”). ↩

12. 12.

    Witnesses Before the ICC, supra note 6, at 15. ↩

13. 13.

    Id. ↩

14. 14.

    William A. Schabas, An Introduction To The International Criminal Court, 248–49 (4th ed. 2011). ↩

15. 15.

    Id. ↩

16. 16.

    Carla Ferstman, Video Lecture, Comment on the Victims Question: How can Victims’ Representation at the ICC be Improved and Victims’ Rights be Protected?, ICC Forum, at 23:08 (Feb. 12, 2013), available online. ↩

17. 17.

    Sheila Vélez, Katanga and Ngudjolo Chronicle #2: Head of the OTP Investigation Team, Aegis Trust (Nov. 25, 2009), available online. ↩

18. 18.

    Id. ↩

19. 19.

    Id. ↩

20. 20.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 43(6), available online. ↩

21. 21.

    Id. ↩

22. 22.

    International Criminal Court, Understanding the International Criminal Court 40 (Aug. 22, 2013), available online, archived.

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

23. 23.

    E.g., id.

    (“Such measures may consist of face/voice distortion or the use of a pseudonym. Separate special measures can be ordered by the Court for traumatised witnesses, a child, an elderly person or a victim of sexual violence. These can include facilitating the testimony of witnesses by allowing a psychologist or family member to be present while the witness gives testimony or the use of a curtain to shield the witness from direct eye contact with the accused.”). ↩

24. 24.

    Id. ↩

25. 25.

    Id. ↩

26. 26.

    Strengthening the ICC and ASP, supra note 1, at ¶ 7(b). ↩

27. 27.

    First Report, supra note 2, at 1. ↩

28. 28.

    Id. ↩

29. 29.

    Id. ↩

30. 30.

    Id. at 6. ↩

31. 31.

    Id. ↩

32. 32.

    Id. ↩

33. 33.

    Second Report, supra note 5, at 1. ↩

34. 34.

    Id. at 13. ↩

35. 35.

    Id. at 14. ↩

36. 36.

    Mark Elliot et al., A Dictionary of Social Research Methods, Oxford Ref. (2016), available online (last visited Jul. 20, 2017). ↩

37. 37.

    Noel Castree et al., A Dictionary of Human Geography, Oxford Ref. (2013), available online (last visited Jul. 20, 2017). ↩

38. 38.

    First Report, supra note 2, at 6. ↩

39. 39.

    David Collier & James Mahoney, Insights and Pitfalls: Selection Bias in Qualitative Research, 49 World Pol. 56 (1996), available online. ↩

40. 40.

    James J. Heckman, Sample Selection Bias as a Specification Error, 47 Econometrica 153, 154–155 (Jan. 1979), available online. ↩

41. 41.

    Id. ↩

42. 42.

    Id. at 153.

    (“Sample selection bias may arise in practice for two reasons. First, there may be self selection by the individuals or data units being investigated. Second, sample selection decisions by analysts or data processors operate in much the same fashion as self selection.”). ↩

43. 43.

    Collier & Mahoney, supra note 35, at 59. ↩

44. 44.

    John Duignan, A Dictionary of Business Research Methods, Oxford Ref. (2016), available online (last visited Jul. 20, 2017). ↩

45. 45.

    Id. ↩

46. 46.

    Ferstman, supra note 16, at 33:47.

    (Carla Ferstman describes how a difficult application process, as a result of unclear forms or the lack of forms in the victim’s language, can cause the victim to not cooperate with the Court). ↩

47. 47.

    Id. ↩

48. 48.

    “Social Desirability Response Set” in Andrew M. Colman, A Dictionary of Psychology, Oxford Ref. (2015), available online (last visited Jul. 20, 2017). ↩

49. 49.

    Id. ↩

50. 50.

    Kelly Dawn Askin, Can the ICC Sustain a Conviction for the Underlying Crime of Mass Rape Without Testimony from Victims?, in Contemporary Issues Facing the International Criminal Court (Richard H. Steinberg ed., 2016), earlier version (Jun. 26, 2012) available online; Ferstman, supra note 16.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. Case Study: Sudan

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

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

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

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

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

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

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

Discussion and Conclusion

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

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

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

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

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

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 1, available online. ↩

2. 2.

   African Union Panel of the Wise, Peace, Justice, and Reconciliation in Africa: Opportunities and Challenges in the Fight Against Impunity 47 (International Peace Institute, Feb. 2013), [hereinafter Fight Against Impunity], available online. ↩

3. 3.

   Nick Grono & Adam O’Brien, Justice in Conflict? The ICC and Peace Processes in Courting Conflict? Justice, Peace and the ICC in Africa 13 (Nicholas Waddell & Phil Clark eds., 2008) [hereinafter Courting Conflict?], available online. ↩

4. 4.

   Michael Otim & Marieke Wierda, Justice at Juba: International Obligations and Local Demands in Northern Uganda, in Courting Conflict?, supra note 3, at 21–27. ↩

5. 5.

   Nicholas Waddell & Phil Clark, Introduction, in Courting Conflict?, supra note 3, at 7. ↩

6. 6.

   Id. ↩

7. 7.

   Fight Against Impunity, supra note 2, at 48. ↩

8. 8.

   Otim & Wierda, supra note 4, at 21. ↩

9. 9.

   Id. at 22. ↩

10. 10.

    Lucy Hovil & Joanna R. Quinn, Peace First, Justice Later: Traditional Justice in Northern Uganda, The Refugee Law Project Working Paper No. 17 at 4 (Jul. 2005). ↩

11. 11.

    Agreement on Accountability and Reconciliation Between the Government of the Republic of Uganda and the Lord’s Resistance Army/Movement, Jun. 29, 2007, UCDP, available online. ↩

12. 12.

    Id. § 4.1. ↩

13. 13.

    Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria 252 (OUP 2008). ↩

14. 14.

    Otim & Wierda, supra note 4, at 23. ↩

15. 15.

    Louise Parrott, The Role of the International Criminal Court in Uganda: Ensuring that the Pursuit of Justice does not come at the Price of Peace, 1 Austl. J. Peace Stud. 8, 28 (2006), available online. ↩

16. 16.

    Id. ↩

17. 17.

    Luis Moreno-Ocampo, Speech at the London School of Economics: The Lord’s Resistance Army: War, Peace and Reconciliation (Mar. 3, 2007). ↩

18. 18.

    Courting Conflict?, supra note 3, at 49.

    (Interview by Phil Clark of un-named Ugandan Member of Parliament, Kampala, Mar. 2, 2006). ↩

19. 19.

    Parrott, supra note 15, at 29. ↩

20. 20.

    William R. Pace, Statement of World Federalist Movement on behalf of the Coalition for an International Criminal Court (Jul. 17, 1998). ↩

21. 21.

    Marlies Glasius, “We Ourselves, We are Part of the Functioning”: The ICC, Victims, and Civil Society in the Central African Republic, 108 Afr. Aff. 49, 50 (2009), Oxford Academic paywall, SSRN paywall. ↩

22. 22.

    Press Release, ICC, Prosecutor Receives Referral Concerning Central African Republic (Jan. 7, 2005), available online, archived. ↩

23. 23.

    International Federation for Human Rights, Forgotten, Stigmatised: The Double Suffering of Victims of International Crimes (FIDH, Feb. 1, 2007), available online. ↩

24. 24.

    Fight Against Impunity, supra note 2, at 53. ↩

25. 25.

    Id. at 54. ↩

26. 26.

    Press Release, FIDH, The Cour de Cassation Confirms the Incapacity of the National Justice System to Investigate and Prosecute Serious Crimes (Apr. 13, 2006), available online. ↩

27. 27.

    Glasius, supra note 21.

    Interview with Pasteur Franco Mbaye-Bondoi, secretary-general of the Evangelical Alliance, Bangui (Sep. 18, 2007). ↩

28. 28.

    Id. ↩

29. 29.

    Glasius, supra note 21.

    Interview with Christian Aimé Ndota, director, Radio Centrafrique, Bangui (Sep. 18, 2007). ↩

30. 30.

    Glasius, supra note 21.

    Interview with Simon Pierre Ndouba Beret, Director, Agence Presse Centrafricain, Bangui (Sep. 19, 2007). ↩

31. 31.

    Glasius, supra note 21, at 56. ↩

32. 32.

    Id. ↩

33. 33.

    Rome Statute, supra note 1, Art. 1. ↩

34. 34.

    Human Rights Watch, Making Justice Work: Restoration of the Legal System in Ituri, DRC (HRW, Sep. 1, 2004), available online. ↩

35. 35.

    Sara Darehshori & Elizabeth Evenson, Peace, Justice and the International Criminal Court, in Debating International Justice in Africa 35 (2010). ↩

36. 36.

    C. Africa President Calls For Lifting UN Arms Embargo, AFP, Sep. 27, 2014, available online. ↩

37. 37.

    Id. ↩

38. 38.

    Id. ↩

39. 39.

    Darehshori & Evenson, supra note 35, at 3. ↩

40. 40.

    Suliman Baldo, The Impact of the ICC in the Sudan and DR Congo, ICTJ, 4 (Jun. 2007), available online. ↩

41. 41.

    Press Release, ICC OTP, Communications Received by the Office of the Prosecutor of the ICC (Jul. 16, 2003), available online. ↩

42. 42.

    Pascal Kambale & Anna Rotman, The International Criminal Court and Congo, Global Pol’y F. (Oct. 2004), available online. ↩

43. 43.

    Id. ↩

44. 44.

    Jacqueline Geis & Alex Mundt, When To Indict? The Impact of Timing of International Criminal Indictments on Peace Processes and Humanitarian Action, Brookings Institution, 8 (Feb. 2009), available online. ↩

45. 45.

    Id. ↩

46. 46.

    Thierry Cruvellier, ICC Joins the Congolese Chess Game, Int’l Just. Tribune, Jul. 5, 2004, paywall. ↩

47. 47.

    Geis & Mundt, supra note 44, at 9. ↩

48. 48.

    Id. ↩

49. 49.

    Phil Clark, Law, Politics and Pragmatism: The ICC and Case Selection in the Democratic Republic of Congo and Uganda, in Courting Conflict?, supra note 3, at 50. ↩

50. 50.

    Shirambere Philippe Tunamsifu, Transitional Justice and Peacebuilding in the Democratic Republic of the Congo, ACCORD (Mar. 9, 2015), available online. ↩

51. 51.

    International Criminal Court, Case Information Sheet: The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06 (Oct. 2016,) available online (last visited Jul. 18, 2017). ↩

52. 52.

    Olivier Kambala wa Kambala, International Criminal Court in Africa: “alea jacta est”, Afr. Arguments (Jul. 13, 2010), available online. ↩

53. 53.

    Id. ↩

54. 54.

    International Criminal Court, Case Information Sheet: The Prosecutor v. Germain Katanga, Case No. ICC-01/04-01/07 (Mar. 27, 2017), available online (last visited Jul. 15, 2017). ↩

55. 55.

    Federico Borello, A First Few Steps: The Long Road to a Just Peace in the Democratic Republic of the Congo, ICTJ, 13 (2004), available online. ↩

56. 56.

    Pablo de Greiff, A Normative Conception of Transitional Justice, 50 Politorbis 17, 22 (2010), available online ↩

57. 57.

    Clark, supra note 49, at 44. ↩

58. 58.

    Id. ↩

59. 59.

    S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005), available online, archived. ↩

60. 60.

    Report of the International Commission of Inquiry on Darfur to the UN Secretary-General (Jan. 25, 2005), available online. ↩

61. 61.

    Id. ↩

62. 62.

    Kushayb was neither tried domestically nor transferred to the ICC. ↩

63. 63.

    Fight Against Impunity, supra note 2, at 55. ↩

64. 64.

    Id. at 37. ↩

65. 65.

    Id. at 56. ↩

66. 66.

    Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7 (Jan. 2001), JSTOR paywall. ↩

67. 67.

    Nicki Alam, Can the ICC Bring Peace to Sudan? Afr. Arguments (Jul. 3, 2008), available online. ↩

68. 68.

    Id. ↩

69. 69.

    Id. ↩

70. 70.

    Anja Tranovich, Seeking Justice where there is no Peace, The Nation (May 24, 2006), available online. ↩

71. 71.

    Sudan: Research, Analysis and Advocacy by Eric Reeves, available online. ↩

72. 72.

    Tranovich, supra note 70. ↩

73. 73.

    Id. ↩

74. 74.

    James Okuk, ICC Justice is Useless if it Destroys Peace, Sudan Tribune, Jul. 18, 2008, available online. ↩

75. 75.

    Id. ↩

76. 76.

    Glasius, supra note 21.

    Interview with Bernadette Sayo Nzale, President of OCODEFAD, Bangui (Sep. 14, 2007). ↩

77. 77.

    Glasius, supra note 21, at 59. ↩

78. 78.

    Parrott, supra note 15, at 23 ↩

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 complicates the role of ICC management in properly categorizing different cases, quantifying factors that are unable to be properly quantified, and creates an opportunity to show improving numbers solely by manipulating data. A better solution would be to measure expeditiousness of proceedings from an experienced prosecutor or judge looking at each proceeding before it occurs, predicting how long it will take, and measuring how often each proceeding is completed in each allotted amount of time. By doing this, the ICC can strive towards its goal of expeditious proceedings, while also ensuring that effectiveness is not substituted for efficiency, and that the highest level of fairness possible is upheld for defendants, victims, and the international community.

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

1. 1.

   See International Criminal Court, Report of the Court on the Development of Performance Indicators for the International Criminal Court (Nov. 12, 2015) [hereinafter First Report], available online, archived. ↩

2. 2.

   Id. ↩

3. 3.

   Assembly of States Parties, Strengthening the International Criminal Court and the Assembly of States Parties, ICC-ASP/13/Res.5 (Dec. 17, 2014), available online, at Annex I, ¶7(b) p.47. ↩

4. 4.

   See First Report, supra note 1. ↩

5. 5.

   Id. ↩

6. 6.

   Id. ↩

7. 7.

   Id. ↩

8. 8.

   Id. ↩

9. 9.

   Id. ↩

10. 10.

    Id. ↩

11. 11.

    See International Criminal Court, Strategic Plan 2013–2017 (Interim Update—July 2015) (Jul. 24, 2015), available online. ↩

12. 12.

    See First Report, supra note 1. ↩

13. 13.

    Id. ↩

14. 14.

    Mark Kersten, Intimidated Witnesses, ICC Judges, and ‘Justice’—Mission Creep or a Revolution Long Overdue?, Just. in Conflict (Jun. 2, 2016), available online. ↩

15. 15.

    Catrina Stewart, ICC in the Dock over Kenya Trials, The Independent, Dec. 6, 2013, available online. ↩

16. 16.

    Id. ↩

17. 17.

    See Lubanga Case, ICC, available online (last visited Jul. 16, 2017). ↩

18. 18.

    Avocats Sans Frontières et al., Open Letter to ICC Prosecutor, DR Congo: ICC Charges Raise Concern (Jul. 31, 2006), available online. ↩

19. 19.

    See International Criminal Court, The Judges of the Court, ICC-PIDS-FS-04-012/15_Eng (May 12, 2015), available online. ↩

20. 20.

    See Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, Arts. 64(9), 69(4) [hereinafter Rome Statute] available online; and see International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3, R. 63(4) (2013), available online, archived. ↩

21. 21.

    David Hoile, Time to Defund the International Criminal Court, Int’l Pol’y Dig. (Nov. 25, 2015), available online. ↩

22. 22.

    Id. ↩

23. 23.

    See First Report, supra note 1. ↩

24. 24.

    Id. ↩

25. 25.

    Id. ↩

26. 26.

    Karim A. A. Khan & Anand A. Shah, Defensive Practices: Representing Clients Before The International Criminal Court, 76 Law & Contemp. Probs. 191 (2013), available online. ↩

27. 27.

    David Davenport, International Criminal Court: 12 Years, $1 Billion, 2 Convictions, Forbes, Mar. 12, 2014, available online. ↩

28. 28.

    Id. ↩

29. 29.

    District Attorney Offices in Southern California prosecuting criminal violations of state law. ↩

30. 30.

    See First Report, supra note 1. ↩

31. 31.

    Id. ↩

32. 32.

    Id. ↩