The Efficiency Lecture Question — Comments

M. Cherif Bassiouni’s Lecture on Efficiency and the ICC.

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Comment on the Efficiency Lecture Question: “In what ways could the ICC’s bureaucracy, finances, judicial election process, and relationship with the States Parties be reformed to increase its efficiency as an instrument for international justice?”

From my personal experience I'm afraid efficiency is linked with staffing – not only the amount of staff but also of quality. The impression during my 18 months period for the assessment of my application for the list of assistants to counsel was that quite a lot of staff is on temporary secondment or internships wasting a lot of time of getting familiar with the working environment and leaving early after finally being familiar.
Maybe the use of more experienced staff (meaning more staff with experience as well as staff with more experience) could improve efficiency as these personnel could get more issues to handle independently.

In order for the ICC's processes and relationships to be reformed, there would have to be compromise between the political bodies and the independent judicial body that is the ICC. This compromise could taint the reputation of the ICC because politics cannot be connected to pure justice.

Reform comes when the court, the surrounding bodies, and the nations of the world can become ok with the fact that globalization is partially responsible for creating today's crimes and that many of these crimes are no confined to borders. A willingness to accept these facts will make the prosecutor less prone to only accept trials he or she can win and will make countries more willing to cooperate in the arrests and information gathering for the court. In turn, the court and its surrounding bureaucratic bodies will become more efficient.

I agree with the above poster's comments and think that the ideas for reform are insightful. However, I do not know if I agree with the statement "compromise could taint the reputation of the ICC because politics cannot be connected to pure justice." While it is arguable that in very special cases, politics cannot be connected with pure justice, to generalize this for all cases implies a more skeptical view on politics than I have. As I mentioned in discussion, I think that evolving the relationship with the signatories of the Rome statute - and thus involving political bodies and therefore, politics etc... - is necessary in order to create a court that is an instrument of international justice. To me it seems inherently more democratic, which I guess I am assuming is more just/positive, to involve the parties that are subject to the court in the management of the court.

I think there are a lot of ways in which the ICC could be reformed in order to increase its efficiency as an instrument for international justice, but it is just a matter of whether or not they have the ability to effectively make all these changes. Firstly, what Mr. Bassiouni had to say about the Judges on the ICC in any point in time was disappointing and unacceptable. To have judges that do not have law degrees or who do not even show up a majority of the time directly undermines the organization and prevents it from being effective. Until there is a better way of selecting judges, the ICC will not be a credible institution. The position needs to be made more desirable so that they are able to select from a number of highly qualified candidates. My second, and last, point is that their relationship with the States Parties needs to change. This problem, however, is more difficult to solve than the judges dilemma. The way their relationships are with various states right now is ineffective and will never truly be able to function in the international community. They need stronger ties and more authority over states to have any influence. Countries like the US, China, GB, etc. will not and do not have to do anything that the ICC wants unless they are looking out for their public image. Until the US looks at the ICC and their relationship with it as something that is binding, results in consequences if broken, and something of true value that they wish to also uphold, the ICC will have no ability to carry out the things it was created to do. It will continue to take out small criminals in countries who have no one to protect them or because the US has no incentive to intervene. It will be just another way for the West to influence the rest of the world as long as it caters to their interests. They will be taking out bad people, yes, but they will not be doing anything that the US couldn't do by themselves...which is why the ICC is ineffective at this point in time.

I very much agree that the ICC's relationship with world powers like the US and China is a crucial weak point in its current ability to pursue its goals. Thus, the question of whether the ICC would be able to acquiese to the demands of these nations while maintaining its non-partisan status and objectivity, or more importantly whether it's even possible to reconcile the differing desires of the powers, is an extremely important one. I did the best I could to cull information about the US's and China's reasons for not complying with the ICC, and found the following: according to the Washington Post, "Former U.S. President Bill Clinton signed the Rome treaty on Dec. 31, 2000, but President George W. Bush renounced the signature, citing fears that Americans would be unfairly prosecuted for political reasons." Given this rationale, it may be difficult to get the US on board without compromising the ICC's original vision. As far as China, despite a surprising vote in favor of referring Qaddafi in 2011, in 2012 they vetoed three UN Security Council resolutions on Syria and have been extremely uncooperative in general with the ICC. Based on these considerations, it seems that one of the ICC's greatest challenges for the next ten years will be to try and get these nations on board.

Some Lessons of History
Though Cherif Bassiouni did present a rather western-centric trajectory of international criminal justice and the ICC's legal history, I am trying to distill the useful lessons from his talk on how to move forward with the ICC. In fact, his reliance on European constructions may not be a bias in as much as it is a natural and inescapable by-product of the very western bent of the ICC's character. In any case, there are three interesting ideas that I took away from Bassiouni's talk that I will try to place into conversation with one another to get a better sense of the ICC.

Firstly, Bassiouni said that, in the field of international criminal justice there is a bifurcation: 1) what historically people called international crimes/court crimes/crimes against humanity/genocide. These do not concern the sovereign nation-state's economic well-being or security in a direct manner and hence the wealth and security-promoting nation-state would gain fewer returns from indicting for these crimes and 2) transnational crimes/human trafficking/terrorism/drug trafficking/piracy. These crimes directly concern the sovereign nation-state's economics and security. Also, because the international criminal courts were comprised of these nation-states, rather than the nation-states starting to reflect the interests of the ICC, the ICC began to reflect the interests of the nation-states. This happened when, at a certain point, precursors of the ICC said that killing in general would not be criminalized. Rather, only killing in war would be criminalized. The definition of killing in war-making is reflective of a national legal paradigm where one nation seeks retribution from another nation. Hence, the international community's interests are not elevated and strengthened. Instead, international legal tools were merely used to elevate and strengthen various nation-state interests.

All of this relates to a second point: If the international courts are driven by national interests, we see a retribution model based on victory and defeat in the legal court rather than the genuine deliverance of justice in the real world. International legality becomes more so about furthering power than about elevating the level of the discussion to consider grander humanistic moral hues of the law. This was well-exemplified in Bassiouni's use of how the issue of Japanese comfort women was dismissed because the logic of indicting the emperor for sexual slavery could resuscitate the logic to punish colonizer nations for slavery. Though very different to slaves, pirates and terrorists similarly pose threats to the nation-state; the former are stateless actors on the sea and the latter have a transnational presence.

Thirdly, I would like to talk about how the retribution model plays itself out "in the field" where justice is finally enacted. Bassiouni's "in the field" example was one "in the village" in which a certain person committed a crime against a whole village. However, due to the need to be efficient and realistic in the legal proceedings the partie civile (group of victims represented in the court) was limited to three villagers. Hence, it was not about delivering justice to all the villagers because only three would actually benefit - it was more so about making a winning legal argument that would enable the court to punish. Hence, it was more so a practice in sophistry rather than truthfully seeking justice for all the villagers.

So, how do we reverse this process of the international criminal courts being impeded because the international legal ethos falls prey to the trap of reflecting national interests rather than vice versa? Complimentarity is one of the concepts that Bassiouni discussed that i think has the power to at least beginning the process of reversing the flow of interests such that nation-states reckon with the interests of international legal code and courts alike.

Finally, near the end of his talk Bassiouni touched upon the vision of the growth of a veritable and actionable international law that may hold the same moral authority that various national legal institutions do. He mentioned that this is a very slow process but was optimistic in the sense that it may already be happening. My question to him would be this: is globalization bring us closer to an international community that has commonly shared values or is the global stage ossifying sovereign nation-state interests and paradigms even more?

An efficient Court Operation,
1. is for the purpose too attain the ends of Justice, and
2. where Jurisdiction is not possessed, as Limited de facto, or as Limited without an agreement, has in agreement in principal to part 1.

Being a War Organ, the states combined whether by virtue of Romes Statute or Act, have inherent authority and jurisdiction to apply to the court of jurisdiction where the accused rests...that Court of Law and Act has inherent authority to endorse the warrant, whether in agreement or not that Romes Statute exists is de facto, the relationship of Judge and Justice must always be combined, whether in agreement or De Facto.

At all material times even when in agreement, a Supreme Court has inherent jurisdiction to quash an international allegation. example- Alexandia [greek] [city related act], Rome [Italy and many others] [state related act]. At all material times all are beside each other being Citizens are Supreme Court, and the local Supreme Courts were acted to be affirmed and reaffirmed from the War Organ for Justice Act.

Therefore the preliminary hearing could be heard locally when no agreement exists, and transferred for the protection and to keep independent from local persecution the local Supreme Court Justice, of the state party hearing allegation to approve the international War Organ Court Act. [Statute of Rome].

The form would be produced internationally private same as any other warranted required to touch information laid, the signature and seal approving the act is endorsed by the supreme court usually filed by a Clerk, or deputy sheriff, and that Organ would deliver the diplomatic package as supreme court endorsed the movement.

May also provide, locally, a level of communication and rights being preserved. Where the form could be used, "to Call for the aid of all Superior Courts".

The Charter of Romes Families provide- the Family unit comes Before State, and exists before State can. A Justice of the Supreme Courts is that Fact.

Reference and trainer- Honorable McIntyre- Supreme Court Canada[1982-], Docket 19518, 19234, and 17760.

Although Mr. Bassiouni (how is impressively often cited as the Godfather of International Criminal Law) had much to say about the ICC’s problems with respect to finances and bureaucracy, I was most struck by the issues it faces regarding victim participation. While I applaud the ideology, principle, and ethics behind the ICC’s attempt to make the victims of human rights atrocities heard, this practice has become incredibly detrimental to the ICC’s overall functionality and efficiency. ICC trials (or at least the few that have occurred) stretch out over years, making convictions unlikely and essentially negating any semblance of deterrence. Moreover, the issue of victim representation has prevented trials from beginning at all. I hold that victim empowerment is an essential component of justice. However, for the sake of efficiency, I believe that victim testimony must be streamlined during ICC proceedings, perhaps by instituting a maximum number of victim testimonies, or perhaps by encouraging victims/their representatives to compile a comprehensive and maximally representative docket of victim testimony to be used exclusively in trial.

The ICC is limited in its ability to improve its own efficiency. The ICC should and must seek to limit the size of its bureaucracy, hold those who work for the ICC more accountable, and enforce the requirements for judges more stringently. However, before anything can truly change with regard to efficiency, states must make a commitment to recognizing the ICC as an independent instrument of international justice. Some of this will change with time. In general, the Office of the Prosecutor must continue its work and do all that it can with current resources. It must pursue meaningful convictions that consider the full impact of the defendant's crimes, it must strive to publicize its work through global media, and it must show its results to both those afflicted and the world. The ICC must show the world its accomplishments and its potential for good so that the people, not just governments, recognize its value and press their leaders to support it. If governments begin to accept the decisions of the ICC, aid in its apprehension, and help it assert diplomatic power, the ICC will be further legitimized in the eyes of the world and more capable of carrying out its duties as a institution of international criminal justice. This success will further legitimize its value, creating a positive feedback loop that will hopefully institutionalize the work of the ICC. Unfortunately, it is much easier for governments to disregard or even actively defy the actions of the ICC, and currently, this seems to be the norm. Governments prevent or attempt to slow evidence gathering by the OTP, judicial nominees are not subjected to the most rigorous standards, and the major powers of the world refuse to pledge full support for the court. It is only if these attitudes change that the court will ever function as an efficient instrument of justice.

I am a HUGE proponent for the court becoming more efficient. I think in order for any state to take the institution seriously, the ICC must start delivering quicker and more cost effective results. Throughout the quarter we have debated the difficulty in determining how to measure the effectiveness of the court. Should it be through geographical reach of the cases? Or perhaps the number of victims for which it advocates? A simple definition would be in the number of cases it tries. More complex would be in the number of convictions. Perhaps most difficult would be to evaluate the court by the quality of the cases. Who would even be capable of judging such a metric? The victims? The lawyers?

In class, we all agreed that any metric examined independently would have very severe flaws. While true, I still believe it is up to the court to outline some type of benchmarks for its performance and publicize these goals. Even if the ICC does not reach its targets, at the very least it will be able to say it has a clear vision for its future and a plan to become more effective. Currently, everyone seems to have difficulty defining the criteria by which the ICC should be judged, but there is a general consensus that under any standards the court is underperforming.

In my opinion, the ICC should strive to get more financial support to realize its initial goal. At first, ICTY and ICTR tried to charge all the suspects regardless of significance crime and status of indictees according to its superiority of jurisdiction over domestic courts. However, because it would require tremendous budget and time, the ICC made indictment confined to serious crimes and indictees to political and military figures in high positions. By this experience the office of the prosecutor (OTP) now puts its significance the most on "sufficient gravity" of a case and the number of victims. However, such standards seem far from the ICC's initial goals, or realization of justice and termination of non-punishment. The current strategy is dealing only with large-scale war crime, which I think is unjustifiable. OTP was reported on situations in Iraq, for example, but it evaluated the case according to the number of victims compared to cases under consideration of jurisdiction including Uganda and Sudan, and it announced that the Iraq case was thus outside jurisdiction. Can we say then that situations in Iraq were less significant than ones in those other counties? In short, what matters is how to achieve a balance between the ICC's capability of jurisdiction in real and its ideal of unconditionally realizing justice. Then, it goes back to financial problem, that is, how to fulfill requirement of tremendous human resources and administrative costs to achieve it. Thus, i think in order for the ICC to increase its efficiency as an instrument for international justice, a reform should be made in a way that it can raise more financial support from nation states.

I think the court can really increase efficiency through technological innovation. Court proceedings in the ICC can become costly, as the proceedings are held internationally. I would be interested in seeing whether or not there can be ways to engage victims via modern webcam technologies, putting databases into computers, having forums for engagement via the internet, and sourcing staff from around the world (and having them work on this via computers). Though this would be subject to cyberattack if it is on unsecure servers, I think that introducing technology into the ICC could be a really good way of generating more efficiency.