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. ↩