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- Hanni Maoz: Evaluation of the Court Performance: A Critical View of the International Criminal Court Indicators for Security Introduction In November 2015, the International Criminal Court (the ICC or the Court) released Report of the Court on the development of performance indicators for the International Criminal Court.1 This First Report contained qualitative and quantitative indicators that were supposed to allow... (more)
- Sebastian Barrios... Evaluating the performance of the ICC: the value of and challenges associated with measuring the expeditiousness of ICC’s proceedings I. Introduction One of the most persistent and often repeated criticisms of all international criminal tribunals has been that they cost too much money and take too long.1 After having been in operation for more than ten years, the International Criminal Court... (more)
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- emrenslo: The Performance Indicator “Expeditiousness of Proceedings” Will Cause Unintended Negative Consequences Using “Expeditiousness of Proceedings” as a performance indicator, as currently envisioned by the ICC, has unintended negative consequences for the prosecutorial, judicial, and management aspects of the Court. I. Introduction The ICC released a... (more)
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Comment on the Performance Question: “The ICC has established four key goals regarding, broadly, its proceedings, leadership, witness security, and victim access. What are the appropriate ways to measure the ICC’s progress towards those stated goals? How can the performance of the ICC as a whole be properly assessed?”
Evaluating the performance of the ICC: the value of and challenges associated with measuring the expeditiousness of ICC’s proceedings
One of the most persistent and often repeated criticisms of all international criminal tribunals has been that they cost too much money and take too long.1 After having been in operation for more than ten years, the International Criminal Court (“ ICC”) is no exception: it is continuously being criticized for its very lengthy and expensive trials.2
The duration and speed of legal proceedings in court cases have for a long time been seen as an indicator of a court’s efficiency and effectiveness. If there is one thing that is easy to measure and communicate it is time spent.
This focus on expeditiousness applies to governments and stakeholders in the various national jurisdictions around the world,3 i.e. on a “local” level. It also applies to policymakers on the regional level, for example the European Union, where there has been an increased focus on performance indicators of courts, not least the expeditiousness of court proceedings4 and the obligations under the European Convention on Human Rights. On that background it is neither an exception nor a novelty that the ICC and stakeholders focus on expeditiousness as a performance indicator for the ICC (though the unique character and nature of the ICC makes the methodologies used by national legal systems and the success criteria difficult to apply directly to the ICC). In a recent report5 from 2015 published by the ICC expeditiousness is explicitly highlighted as a central performance indicator:
Furthermore, the Rome Statute,6 which has been agreed by the Signatory States and which embodies the legal framework for the functioning of the ICC, contains explicit obligations regarding expeditiousness. Article 64 reads: “The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witness.” Article 67 reads (under the heading “Rights of the accused”) that the accused has the right to “be tried without undue delay.”
While it is difficult to disagree with the ICC’s own, relevant stakeholders’ and the international community’s focus on and interest in the expeditiousness of ICC cases as such, many difficult derived questions and potential problems arise when it comes to having time spent as a performance indicator.7 While easy to measure, time spent by the ICC and duration of trials have to be seen in the very complex context in which the ICC functions. If this is not done, the outcomes of the measuring of time will not show a true and fair picture of how the ICC actually functions.
One problem as regards “time spent” and expeditiousness relates to adequately taking into account potential structural challenges affecting efficiency and effectiveness of the ICC. Such challenges may only be handled by textual amendments of the Rome Statute and are thus (currently) out of the ICC’s control and influence.
Another challenge is that States play a major role in ensuring the efficiency and effectiveness of the ICC, hence making the expeditiousness of ICC trials something, which is highly influenced by something the ICC itself cannot control. Accordingly, given the multi-faceted characteristics of the ICC—a judicial institution depending on States to enforce its orders and operating in a multi-cultural and highly political context—lack of expeditiousness in the ICC’s operations cannot only be ascribed to the ICC’s judicial procedures, planning, allocation of resources and/or and strategies. Any assessment of whether the ICC is sufficiently expeditious in its adjudication would be incomplete if not taking into consideration the important role played by States through cooperation with assisting the Court to fulfil its mandate.8
In situations where there is non-cooperation, insufficient or lack of timely cooperation by States when it comes to, inter alia, the enforcement of arrest warrants, or respond to requests by the ICC for judicial assistance, this significantly impedes the ICC’s possibilities of handling the trials in an expeditious manner, which is damaging to the ICC’s integrity and its potential to stem impunity. Thus, the ICC’s dependency on States corporation need to be accounted for when assessing expeditiousness.
II. Scope of Thesis
The scope of this thesis is to assess and discuss the following: Is it at all relevant to measure the duration of trials pending before the ICC. In the affirmative, how can it adequately be handled that the ICC has not completed a high number of cases serving as benchmarks for measuring expeditiousness? How does measuring expeditiousness take the complexity and comprehensiveness of ICC cases into account? How are resources and the legal framework for the ICC taken into account when using expeditiousness of ICC trials as a performance indicator?
III. Speed of the ICC’s Court Proceedings as a Relevant Performance Indicator?
Many reasons have been highlighted over the years justifying the focus on the duration of cases before the ICC.9 To highlight some of the most common points justifying a strict focus on time spent, there is the deference to:
The accused who—especially in the event where the accused turns out to be innocent in some or all of the charges—has a fundamental right to have his/her legal position clarified as quickly as possible.
The direct victims and—in the event the victims are deceased—dependents who should be granted relief and justice as soon as possible without any unnecessary delay in this respect.
The actual outcome of the case, which can be influenced by excessive time spent on the case because the investigative work, access to witnesses etc. is inevitably impeded the longer the case goes on.
There are financial implications associated with protracted court cases because more time spent by judges, ICC staff, lawyers etc. equals an increase in resources allocated to that particular case.
Finally, lengthy court cases will create a knock-on effect on new, incoming cases, which will be delayed and delay new cases, hence creating a vicious circle of protracted cases.
All of the above factors speak in favor of the ICC’s focus on expeditiousness and time spent as a performance indicator. There is, however, also justified critique of focusing (too much) on time and expeditiousness. Legal scholars, judges and stakeholders have opposed against quickness and hours spent being a main area of attention when it comes to indicators serving a criterion for a courts performance.10
One of the main critics, which is presented by the judiciary and international criminal law experts, is that expeditiousness will inevitably create a focus on the “productivity” of judges and the court as if the job of a judge and the function of the court was similar to a factory producing material goods. The more expeditious the factory workers (judges and staff), and the management of the factory is, the more productive can the factory be, more goods be produced and an increased “productivity” is considered to be good, whereas a decline or stagnation in productivity is found to be bad and an indicator of something not functioning well.11 Hence, in the critics’ view, the judicial and legal quality is “under-estimated” and under-valued primarily because time, conviction rates, duration of the different stages of the court proceedings etc. are easier to measure than abstract concepts such as quality and fairness. In the critics view the before mentioned factors should be the overarching performance indicator for the any court regardless of the difficulties measuring such factors. I tend to agree with these points of view as there is inevitably an inextricable paradox associated with solving cases very expeditiously, but at the same time very thoroughly. I do, however, also fully appreciate that there is no direct correlation between expeditiousness and fairness/quality, i.e. a trial is not necessarily more fair or has been subject to more thorough scrutiny just because to trial lasted for a long time.
The above should not be construed as if there should not be a focus on the time spent on ICC cases, but this cannot be done at the expense of the fairness and quality of the ICC as this would otherwise undermine the integrity of the ICC.
In conclusion, there is no doubt that there are many and weighty reasons to focus on expeditiousness of the ICC as a performance indicator. However, there are also several challenges connected with focusing on time spent as several factors—outside the control of the ICC—can affect the expeditiousness of the ICC. It is my position that such other factors need to be taken into account when measuring the ICC’s expeditiousness of lack thereof.
In order to assess whether ICC trials are sufficiently expeditious, it is necessary with some sort of objective yardstick for the purpose of measuring. However, it is scarcely possible to identify such objective and measurable yardstick, because every ICC trial is unique and different (as opposed to trials pending before national courts), and therefore must be assessed separately on its own, individual merits. Hence, where 6 years could appear to be acceptable in ICC case A, 3 years could be considered unduly lengthy in ICC case B. Consequently, it poses a challenge to agree on a generally applicable yardstick for highly unique trials.
With few exceptions there is general consensus about that ICC trials must be expected to take longer than trials pending before national courts. It is a matter of fact that international crimes covered by the Rome Statute most often involve atrocities, which have been committed on a massive scale and over long periods of time. It goes without saying that such cases are far more comprehensive and complicated than most national cases.
Not only the legal assessment in these type of cases is time consuming. Also all the necessary work with countless witnesses—often from countries far away from the Hague—who need to be interpreted and heard, takes time. Substantial amounts of documentary evidence will have to be translated and assessed, and the complexity and workload is even bigger when more than one conflict is to be addressed and adjudicated at the same time.12 So to put it short: ICC trials will always have a nature and character, which will challenge the patience of the implicated parties, States Parties, stakeholders etc.
The above described complex nature of ICC cases entails that a yardstick for expeditiousness, which might be considered appropriate in the context of national courts and national trials, is of limited relevance and/or applicability for the ICC.
However, this does not change the fact that tools and procedures for measurement of expeditiousness should be established to a higher degree than currently. It is for the ICC, the States Parties and relevant stakeholders to frame tools for measurement of expeditiousness to the highest possible extent, while at the same time not conflict or prejudice other seminal principles and interests enshrined in the Rome Statute.
IV. How to Establish Appropriate Benchmarks for ICC Trial Proceedings?
In order to measure the expeditiousness of cases the ICC has declared to establish an expected duration for the stages of each new case against which actual performance can be measured. The expected duration for the stages should provide working assumptions for the likely overall duration per case. The expected durations can serve as a benchmark against which to assess the actual progress of a case, i.e. serve as a performance indicator.13
While I view such initiative as being both relevant and useful, it also poses serious challenges. For the time being the ICC has not yet specified how these benchmarks will be established, i.e. what the estimated length of each step of the trial proceedings should be, or how such estimated length should be determined.
I note, however, that the ICC itself stress that benchmarks should be made in a manner where the specific features and challenges of each case can be taken into account. While national courts have a substantial amount of cases and previous experience to draw on when establishing estimated lengths of trials proceedings, the ICC is not advantaged in the same way.14 This makes the actual drawing up of benchmarks difficult as benchmarks for the future is often based on experience from the past.
The ICC has finalized a very limited number of cases and all the cases have had their own unique features. Hence, it will be very challenging—and not recommendable—if the ICC was to use previous cases as the sole basis for setting out estimated durations of each step of the ICC trials in general.
I consider it viable if the ICC would seek inspiration and draw on experience from other international criminal tribunals when deciding its estimations for the steps in the trials. Furthermore, the ICC should look to complicated national trials when estimating the duration of a “typical” ICC trial.
This could for example be done by looking at complex domestic murder and terror trials from around the world. Just to highlight a single example which could serve as inspiration is the prosecuting of Timothy McVeigh in the US.15 The case was very complex and costly and thus had some of the same characteristics as a ICC trial. The cost of investigating and prosecuting Timothy McVeigh for the Oklahoma City bombing has been estimated to be 82.5 million for a three-year period between 1995 and 1998. Furthermore, it is estimated that that the FBI had 2,592 agents investigating the case in 1995, which says something about the time and resources spent on the case.16
The above mentioned case from a (US) national court is just one example of a case where I consider it viable for the ICC to seek inspiration when setting out its estimated durations for ICC trials. More of such cases should be analyzed by the ICC prior to deciding an appropriate benchmark for the various steps of the trial proceedings. All such complex national trials would have had a comprehensive investigative phase, a large amount of evidence, and—presumably—many of the same features affecting the duration of the trial.
In that connection, I should highlight that the national cases do not necessarily have to be murder and terror cases. As long as the legal, factual and evidentiary issues are comprehensive and complex, then the case could serve as appropriate inspiration for the ICC benchmarks. This could, for example, be cases about complex financial crime, such as the case against former Enron CEO, Jeffrey K. Skilling, who was convicted of conspiracy, securities fraud, insider trading etc. in connection with the collapse of the Enron Corporation in 2001).17 Also this trial, similar to the Timothy McVeigh-trial, took several years, was highly complex and cost an enormous amount of money.
While estimated durations for the various steps of the ICC trials are definitely useful case-management tools and thus relevant to implement for the purpose of measuring expeditiousness, the ICC should be cautious about not being too ambitious when setting out such estimates. Hence, the ICC is better off making realistic estimates (inspired by comparable national trials and other international criminal tribunals), which the ICC can comply with, rather than setting out estimated durations for the proceedings, which are too short.
V. How to Adequately Take into Account the Complexity and Unique Character of each ICC Case
A large part of those who present criticism against the lack of expeditiousness of ICC trials are often (implicitly) making a benchmarking between ICC cases and trials adjudicated before national courts. If such comparison is made there is no doubt that ICC trials appear to be inappropriately long.
It is a matter of fact that ICC cases take a lot more time, when you compare the ICC case to a domestic, average criminal case. As a matter of exemplification in 2014 approximately 65 % of all criminal cases in Danish lower courts took no more than one single day (or even less). Furthermore, no more than 28 criminal cases took more than 15 days.18
To put that in perspective the average ICTY trial (comparable to ICC trials) lasted approximately 170 days.19 Hence, it is quite obvious that trials before international criminal tribunals, whether the ICC, ICTY or others, take much longer than domestic criminal trials in Denmark and probably in every single country around the world. It should be kept in mind, however, that international criminal court cases are indisputably much more comprehensive and both legally and factually more complicated than any “normal” national criminal court case, which one would come across.
On that background it can only be expected that the more complicated case the longer time spent. Hence, it would be both unfair and highly misleading if one would compare the estimated lengths for the various procedural stages in an ICC trial with durations (both actual and estimated) in national courts if one does not take into account the vastly more complex ICC cases.
For the above reasons, it is my suggestion that the ICC should adopt a method—together with the adoption of estimated and measurable durations for the various stages of the trial. The overall idea about this method, which without a doubt needs to be refined and further developed outside the scope of this comment, should be based on the number of trial witness, which are needed to complete the ICC case. Furthermore, the method should factor in the amount of trial exhibits, and finally take into account the overall amount of days in trial. By taking these three factors into account the ICC should develop a complexity matrix which could demonstrate how complex each ICC case is.
By using such a matrix there could be given a more fair and full picture of the expeditiousness of the ICC instead of only looking at the ICC’s compliance/non-compliance with the established estimated benchmarks for the various stages of the trial. The complexity matrix is thus intended to be a tool which should be used in conjunction with, and when interpreting, the data about the ICC’s (non)compliance with the stipulated benchmarks. My point with focusing on case complexity is that a better understanding of the complexity is a means of better understanding why the expected and actual duration of ICC trials can never be nearly as expeditious as domestic criminal cases.20
And even though it is generally accepted that international criminal cases, such as the cases pending before the ICC and ad hoc tribunals, are more extensive and complicated there is a lack of academic studies adequately analyzing and describing the complexity of such trials. However, the relevance of assessing and factoring in the complexity of international criminal trials calls for the ICC to allocate resources to this issue together with focusing on expeditiousness. Otherwise, it will not be possible to benchmark the expeditiousness against other courts. It is therefore my standpoint that concurrent focus on complexity together with establishing benchmarks for the ICC trials proceedings is appropriate. By assessing and factoring in the complexity of each ICC case both the ICC itself and involved stakeholders can in a more true and fair way keep track on how well the ICC is able to handle its cases with sufficient expeditiousness.
With the danger of preempting future results of the expeditiousness of the ICC, I feel relatively sure that pairing estimated benchmarks for the various stages of ICC trials proceedings will entail that one of the most persistent criticism of the ICC (duration of trials) will—if not be repudiated—then at least be seen and discussed in a more varied manner, i.e. show that the ICC is not necessarily so in-expeditious as we thought.
I also believe that the combination of benchmarks for duration and application of a complexity matrix will bring about positive side effects in other areas than just expeditiousness. More specifically, there is a likelihood that it will be easier for the States Parties to agree on the yearly budgets for the ICC, which is also a recurring topic giving rise to heated debates: what is the amount of money which the ICC really need?21
My point is that if it becomes more transparent how expeditious the ICC actually handles its cases—by pairing the benchmarks for procedural stages with complexity—then it will also be more transparent whether the ICC actually needs more resources/funding (often asserted by the ICC), or whether the ICC is not efficient and expeditious enough implying that the ICC could in fact do more with the funding already granted if the ICC just finished trials in a more expeditious manner (as asserted by some States Parties).22
Often the States Parties disagreements about allocation of funding to the ICC is based on disagreement about whether the ICC is too slow. However, if there is no objective data in this respect then such disagreements will to a large extent be very subjective, which is not a viable nor reliable basis for making decisions about whether the ICC has sufficient funding or not. Consequently, if the ICC develops the complexity matrix together with its focus on benchmarks for estimated lengths for trial proceedings then a positive side-effect would probably be that the budgeting process would be significantly improved.
Accordingly, the (lack of) speed in ICC trials and the developed estimations for time spent, need to be seen on the background of the very nature of the ICC cases. Thus with a complexity measure and time spent data for each procedural step during an ICC trial, I consider it doable—over time when more and more data becomes available—to calculate the efficiency of the ICC and compare the ICC’s capability of acting expeditious with other courts, i.e. both domestic courts and other international criminal tribunals.
Consequently, by not only looking at the duration of the various steps of the ICC trial, but also pairing the assessment with taking into account the complexity of ICC cases, then it might turn out that the ICC proves more efficient than comparable courts. And, if this is the case, then the ICC has not been inappropriately slow given the complexity of the cases it has tried.23
If the complexity if ICC cases is not taken into account when assessing the ICC’s future (non)compliance with the benchmarks for the various procedural stages, then it is my assertion that using compliance with stipulated benchmarks as a performance indicator for the ICC’s expeditiousness will be—if not misleading—then at least incomplete.
VI. (Lack of) Resources and Procedural Challenges
The year 2016 marked the ICC’s largest workload since the ICC became operational. Consequently, increasing its efficiency, including by improving expeditiousness of the ICC’s judicial proceedings, would be a challenge without adequate funding.24
Hence, I consider it very relevant to factor in the funding of the ICC when assessing the expeditiousness of the ICC, including its future compliance with benchmarks for the various stages of the trial proceedings. Just as the case is with the complexity of ICC cases, cf. above, it makes little sense to view and measure the ICC’s time spent on a case detached from factors affecting the time spent.
The ICC can be illustrated, as any other type of court—whether international or domestic—, by means of input, throughput and output.25 When it comes the ICC’s input one should distinguish between the cases and the resources. Thus, personnel of the ICC (primarily the ICC judges and the ICC staff), material (telephones, meeting rooms etc.), and funding, which—in effect—is the budget of the ICC, all constitute the resources of the ICC.
If one changes the level of the above mentioned resources of the ICC, this will inevitably entail a direct impact on the ICC’s capability of acting expeditious. With the fear of stating the obvious: if there is insufficient resources to the ICC (equipment, judges, staff etc.) then it is very likely that ICC cases will not be handled in a more expeditious manner. On the contrary, there will most likely be an increase of the length of proceedings and this will as a consequence entail that the ICC will have difficulties complying with the established benchmarks for the various stages of the trial.
When measuring the expeditiousness of the ICC there should also be accounted for the rules in the Rome Statute, which govern the ICC trials. Hence, when the States Parties and relevant stakeholders assess the ICC’s compliance or non-compliance with estimated benchmarks for the duration of the various steps of the court proceedings, it should somehow be factored in that the procedural rules in the Rome Statute might very well affect the length of the proceedings before the ICC.26
I therefore suggest that the far-reaching procedural rights to challenge the admissibility of the court proceedings, cf. the complementarity principle expressed in Articles 17 to 19 should be accounted for. This can be done by monitoring the occurrence of such challenges. Furthermore, the very broad scope of investigation, cf. Article 54(1)), is something that can and will entail that ICC trials are time consuming in a degree which might—on the surface—seem excessive. The investigation is not something that is within the ICC’s control. In addition, it should be taken into consideration that the Rome Statute contains rules about a confirmation hearing, cf. Article 61, the participation of victims at various stages of the court proceedings, cf. Article 68(3)), and rules which provide for reparation proceedings in Article 75.
All the before mentioned rules are rules are just selected examples, which could be considered to be changed and/or streamlined for the purpose of reducing the length of the ICC trials. If this is not possible, the measuring of the ICC potential non-compliance with established benchmarks for various stages in the court proceedings should give a detailed account for the correlation—if any—between the procedural rules in the Rome Statute.
This should be done on a case-by-case basis for each trial. The way it could done is that for each stage of the trial proceedings the ICC monitors and make note of to which extent the accused and implicated parties in the trial make use of procedural rules prolonging the trial.
Hence, any data for the ICC’s compliance with established benchmarks for the various stages of the proceedings should be followed by an explanatory note for each of the procedural stages setting out the procedural issues which have prolonged the specific procedural stage in question. Otherwise it will be very difficult to know whether it is the handling by the ICC as such, which have delayed the trial, or whether it is simply the result of application of rules contained in the Rome Statute.
I finally note, that there are rules regarding disqualification of judges in the Rome Statute, Article 41, which are combined with (in my view) a quite rigid regime as regards the possibility of assigning judges to division, cf. Article 39, which all together impedes the possibility for the ICC president to actually expedite and speed up trial proceedings. Finally, there is Article 74, which stipulates a very strict rule requiring the presence of all judges of the Chamber during trial.
All together I suggest that the States Parties—over time—consider to adjust some of the procedural rules contained in the Rome Statute actually working against the expeditiousness of the ICC. And before this is done (if ever done) the not so flexible rules should be kept in mind and taken into account when measuring the ICC’s capability of handling and finalizing trials in a sufficiently expeditious manner. My point is that it makes little sense to look narrowly at time spent if not also factoring in that some of the time spent is due to procedural rules, which the ICC has no influence on and is bound to work within.
It is an ongoing discussion how to strike the right balance between enhancing the expeditiousness of a court while at the same safeguarding quality and procedural fairness. It is a very difficult challenge. By way of illustration, I find it worthwhile to highlight the decision from November 2010 in the ICC case against Jean-Pierre Bemba.27
In this case the majority of the judges issued a ruling a very short time before the commencement of the trial, according to which “all statements of witnesses to be called to give evidence at trial,” in addition to all the documents, which had been submitted to the Chamber in the prosecutor’s “List of Evidence,” should be prima facie admissible for the purpose of the trial at hand. This have by some commentators been described as a ruling on “wholesale admissibility” of evidence by the ICC.
In the majority of judges’ point of view, such ruling was in compliance with the legal, procedural framework for the ICC. In the majority’s view, such ruling was justified as the ruling increased the “expeditiousness and proper conduct of the proceedings as it will allow for more coherence between the pre-trial and trial stages of the proceedings.”
However, in the dissenting opinion rendered by Judge Kuniko Osaki it was expressed that the ruling made by the majority to oblige the prosecutor tendering “wholesale” of all witness statements in the case as evidence, without even conducting a prior assessment of the merits of each such witness statement, was clearly contrary to the principle of witness statements having to be given in person, which is embodied in the Rome Statute. In his point of view, such ruling would have a very far reaching impact on the proceedings’ fairness and Jean-Pierre Bemba’s right to defend himself.
The example illustrates two legitimate, but also sometimes contradicting interests: the majority based the decision on a rationale where expeditiousness of the trial was very important, where the dissenting Judge expressed concern about the—in his view—potential unfairness to Jean-Pierre Bemba.
No perfect solution exists when it comes to balancing expeditiousness against fairness and legal quality. However, I do consider it to be a good initiative and area of focus when the ICC has highlighted expeditiousness as a performance indicator for the ICC. In that respect, it also makes sense that the ICC will establish benchmarks for the duration of the various stages of the trial proceedings. However, and as discussed above, measuring time spent on a case should be done on a stand alone basis.
To get a true and fair view of the ICC’s expeditious handling of trials (or the lack hereof) and compliance with established benchmarks, the unique nature of each ICC case should be taken into account. Hence, the ICC should factor in the complexity of each case and measure the expeditiousness together with such complexity. Furthermore, it is advised that the ICC, when establishing the benchmarks for the duration of the various stages of the trial, seeks inspiration from other international criminal tribunals, and complex cases handled by national courts. It is advised that States Parties and other relevant stakeholders take into consideration the procedural rules contained in the Rome Statute, which can potentially impede the expeditiousness of the ICC. Finally, the resources and funding of the ICC should be factored in when assessing whether the ICC manages to handle cases in a sufficiently expeditious manner. If the ICC does not receive adequate funding, while at the same time being expected to adjudicate more cases and in a more expeditious manner, then it cannot be expected that the ICC manages to comply with the benchmarks for the duration of each stage of the trials. Hence, it is advised that the States Parties consider whether it is possible to provide additional funding to the ICC. If not, the ICC should establish very conservative benchmarks for the various stages of the proceedings in order to ensure its capability to comply with such benchmarks.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Shehzad Charania & John Doyle, Increasing the Efficiency of the Criminal Process at the International Criminal Court, While Preserving Individual Rights, ilawyerblog (Jul. 15, 2014), available online. ↩
Coalition for the International Criminal Court, How can ICC Trials be More Efficient? (Nov. 24, 2015), available online. ↩
See Justits Ministeriet [Danish Ministry of Justice], Bedre og mere effektiv behandling af civile sager ved domstolene [Better and More Effective Handling of Court Cases] (Dec. 18, 2013) (Den.) [hereinafter Danish Ministry of Justice], available online.
(The author of this comment is a practicing lawyer in Europe and can attest to the fact that the speed of national court proceedings is a constant topic for discussion). ↩
Marco Fabri & Nadia Carboni, Saturn Guidelines For Judicial Time Management: Comments and Implementation Examples, CEPEJ (Jun. 22, 2015), available online. ↩
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. ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], available online. ↩
See inter alia, International Bar Association, ICC Monitoring and Outreach Programme: Enhancing Efficiency and Effectiveness of ICC Proceedings: a Work in Progress (Jan. 2011), available online. ↩
Oona A. Hathaway, Between Power and Principle: An Integrated Theory of International Law, 72 U. Chi. L. Rev. 469 (2005), available online; Laurence R. Helfer & Anne-Marie Slaughter, Why States Create International Tribunals: A Response to Professors Posner and Yoo, 93 Cal. L. Rev. 899, 906 (2005), available online; Antonio Cassese, Is the ICC Still Having Teething Problems?, 4 J. Int’l Crim. Just. 434, 441 (Jul. 1, 2006), Oxford Academic paywall, SSRN paywall, ResearchGate paywall. ↩
See inter alia, James F. Alexander, The International Criminal Court and the Prevention of Atrocities: Predicting the Court’s Impact, 54 Vill. L. Rev. 1 (2009), available online; Elena Baylis, Reassessing the Role of International Criminal Law: Rebuilding National Courts Through Transnational Networks, 50 B.C. L. Rev. 1 (Jan. 1, 2009), available online; Yuval Shany, Assessing the Effectiveness of International Courts: A Goal-Based Approach, 106 Am. J. Int’l L. 225 (2012), available online, archived. ↩
See inter alia, Daniel Donovan, International Criminal Court: Successes and Failures, Int’l Pol’y Dig. (Mar. 23, 2012), available online; Maria Dakolias, Court Performance Around the World: A Comparative Perspective, 1 Yale Hum. Rts. & Dev. L.J. 87 (1999), available online. ↩
Folkedrab og Internationale Domstole [Genocide and International Courts], DIIS, available online (Den.) (last visited Jul. 19, 2017); Danish Ministry of Justice, supra note 3. ↩
Guénaël Mettraux, Shireen Avis Fisher, Dermot Groome, Alex Whiting, Gabrielle McIntyre, Jérôme De Hemptinne & Göran Sluiter, Expert Initiative on Promoting Effectiveness at the International Criminal Court (Dec. 2014), available online, archived. ↩
First Report, supra note 5. ↩
Philipp Ambach & Klaus U. Rackwitz, A Model of International Judicial Administration? The Evolution of Managerial Practices at the International Criminal Court, 76 Law & Contemp. Probs. 119 (2013), available online. ↩
On April 19, 1995, Timothy McVeigh, and his accomplice Terry Lynn Nichols, set off a bomb outside the Murrah Building in Oklahoma City, Oklahoma, that killed 168 people and injured numerous more. See United States v. McVeigh, 153 F.3d 1166, 1176 (10th Cir. Sep. 8, 1998), available online. ↩
Stuart Ford, Complexity and Efficiency at International Criminal Courts, 29 Emory Int’l L. Rev. 1 (2014), available online, archived. ↩
See Danish Ministry of Justice, supra note 3. ↩
Susana SáCouto & Katherine Cleary, Expediting Proceedings at the International Criminal Court (Am. U. Wash. C. L., WCRO, Jun. 2011) [hereinafter Expediting Proceedings], available online. ↩
Ford, supra note 16; Mattraux et al., supra note 12. ↩
Ambach & Rackwitz, supra note 14; Expediting Proceedings, supra note 19. ↩
See also Ford, supra note 16. ↩
Press Release, General Assembly, Debating Report of International Criminal Court, Delegates Stress Need for Court’s Adequate Funding, Accession by Member States to Rome Statute, GA/11720 (Nov. 6, 2015), available online. ↩
Shany, supra note 9. ↩
See inter alia, Håkan Friman, Fabricio Guariglia, Claus Kress, John Rason Spencer & Vladimir Tochilovsky, Measures Available to the International Criminal Court to Reduce the Length of Proceedings, Informal Expert Paper, ICC OTP (2003), available online; Richard Dicker & Elise Keppler, Beyond the Hague: The Challenges of International Justice, in Human Rights and Armed Conflict 194 (HRW, Jan. 2004), available online. ↩
Bemba Case, ICC, available online (last visited Jul. 19, 2017) ↩