Invited Experts on Performance Question

Dancy Avatar Image Geoff Dancy, Ph.D. Assistant Professor of Political Science Tulane University

Evaluating ICC Performance: Design is Critical. The ICC should carefully apply social science methodology when devising performance indicators. Among other things, it needs to maintain a critical distinction between performance evaluation and impact assessment.

Cutting-edge social science research offers answers to these kinds of questions. The answers always start in the same place: design of inquiry.

Summary

Commentary on the International Criminal Court is heavy with evaluation but light on method. Observers make harsh pronouncements about the Court’s cost, its pace, its conviction rate, and its bias.1 Rarely, though, are gripes about the ICC accompanied by a measured discussion of what we should expect.

The ICC is the first of its kind. That means there are no baselines for comparison. There is also no protocol, or set of best practices, for how to review its work. Yet the criticisms mount, creating a pressing need for internal performance review.

In December 2014, the Assembly of State Parties requested that the Court “intensify its efforts to develop qualitative and quantitative indicators that would allow the Court to demonstrate better its achievements and needs.”2 This move could be a sign that the Court’s honeymoon period—if it ever existed—is over, and it’s now time to start counting beans. The request could also be a way to exert subtle pressure on the Court to demonstrate its worth in the face of political pressure.

The Court has obliged. Pursuant to the ASP’s request, the ICC is working with the Open Society Justice Initiative to develop indicators of Court performance. The pilot work is detailed in two 2016 reports. The Second Report,3 a twenty page document on the development of indicators, is helpful in two ways: it provides insight into the Court’s thinking about how it should be evaluated, and it appends a fifty-page annex with raw data on the last three years of Court activity.

Clear from this report, and from the question posed to the ICC Forum penned by Head Prosecutor Fatou Bensouda, is that many methodological questions remain unanswered. How should the Court quantify fairness? How can it possibly evaluate whether its own leadership is effective? Can contextual factors be captured by quantitative measures or benchmarks?

Luckily, cutting-edge social science research offers answers to these kinds of questions. The answers always start in the same place: design of inquiry.

Krcmaric Avatar Image Daniel Krcmaric, Ph.D. Assistant Professor of Political Science Northwestern University

The ICC’s pursuit of international justice creates difficult tradeoffs between ending ongoing conflicts and deterring future atrocities

A credible threat of international justice should both prolong ongoing conflicts and deter future atrocities. My argument hinges on a previously neglected factor: how international justice shapes the viability of exile as a retirement option for abusive leaders.

Summary

There are two diverging schools of thought that discuss how the ICC, and the pursuit of international justice in general, might influence violence. On the one hand, optimists argue that the threat of prosecution deters atrocities. Consistent with the claim of Human Rights Watch’s Kenneth Roth that “behind much of the savagery of modern history lies impunity,”1 the assumption is that the promise of legal accountability can prevent the next Holocaust or Rwandan Genocide. On the other hand, pessimists worry that if the warring parties are vulnerable to international criminal prosecution, they may decide to keep fighting when they would otherwise make peace. During the 2011 Libyan conflict, for instance, the Washington Post’s Jackson Diehl speculated that “Libyans are stuck in a civil war in large part because of Gaddafi’s international prosecution.”2

The current debate contains some valuable points. However, it is too simplistic to argue that the ICC is exclusively helpful or exclusively harmful. In fact, the debate between optimists and pessimists is missing the big picture: the positive and perverse effects of the ICC are intimately linked. In this post, I will make the case that a credible threat of international justice should both prolong ongoing conflicts and deter future atrocities. My argument hinges on a previously neglected factor: how international justice shapes the viability of exile as a retirement option for abusive leaders.

McIntyre Avatar Image Gabrielle Louise McIntyre1 Chef de Cabinet, Office of the President United Nations Mechanism for International Criminal Tribunals

Performance Assessment Cannot Take Place in a Vacuum

Providing only a partial or limited overview of the Court’s performance could be particularly detrimental in so far as it may give rise to ill-founded expectations and confusion as to what the Court can achieve, what hurdles it faces, and where meaningful reforms could be implemented.

Summary

The development of appropriate ways to measure the progress of the Court toward achievements of its stated goals and its performance overall is a complex and difficult undertaking, and the efforts thus far—reflected in the Court’s most recent report2—are to be commended. It likewise must be acknowledged that collecting performance-related data can be a resource-intensive undertaking, and the Second Report in many ways reflects the need to seek an appropriate balance between performance assessment, on the one hand, and actual performance, on the other. The Second Report appears to seek to strike such a balance by limiting the scope of the performance assessment in a number of different ways and making it a primarily inward-looking exercise.

For performance assessment to be meaningful, however, it cannot take place in a vacuum, as a number of commentators both inside and outside the Court have recognized.3 Rather, performance assessment must look at the work of the Court in its proper context.

That means, inter alia, that performance assessment must take account of the system created by the Rome Statute in which the ICC operates, including the primary role played by State Parties in the operationalization of that system. Indeed, an approach to performance assessment that looks at only some aspects of the Court’s work and mandate, excludes consideration of relevant external factors, and does not fully reflect the aims underlying the performance assessment process, represents a missed opportunity to identify and address all factors fundamental to the success of the Court. Such a circumscribed approach to performance assessment also risks misleading or providing inadequate information to key interlocutors—including the Assembly of States Parties and the general public—as to both the Court’s achievements and, more fundamentally, its needs. Given the current critical stage of the Court’s development, providing only a partial or limited overview of the Court’s performance could be particularly detrimental in so far as it may give rise to ill-founded expectations and confusion as to what the Court can achieve, what hurdles it faces, and where meaningful reforms could be implemented.

As set forth below, a more holistic approach to performance assessment will serve the Court and the Rome system well in the long run. Such an approach would mean going beyond the narrow confines of the performance assessment exercise outlined in the Second Report. To do this notwithstanding its resource limitations, the Court may have to limit performance indicators to those that are most critical to assessing the success of the Court as a whole. It may also wish to consider exploring partnerships with external bodies to help ensure that the performance assessment undertaken is as comprehensive, meaningful, and effective as possible. Difficult though it may be to implement a more comprehensive and holistic approach, it is important that such an approach be adopted from the beginning, not left to be phased in gradually over time, if the Court, the Assembly of States Parties, and all other interested parties are to truly benefit.

Shany Avatar Image Professor Yuval Shany Hersch Lauterpacht Chair of Public International Law Hebrew University of Jerusalem

An ICC Availability Bias? The Performance Indicators relating to the Four “Key Goals” Provide Useful Information on the Court’s Operations, but are of Limited Utility in Measuring the Court’s Overall Effectiveness

It appears as if the key goals are a hodgepodge of process and outcome goals, which are related to different evaluative criteria—judicial effectiveness, cost-effectiveness and efficiency—and do not sufficiently relate to the core business of the ICC—e.g., ending impunity and developing international criminal law.

Summary

The four key goals identified by the ICC in 2015 and reaffirmed in a slightly revised version in a Second Report from 2016—expeditious, fair, and transparent proceedings; effective leadership and management; adequate security; and access for victims to the Court—offer a useful starting point for evaluating the performance of the Court. They have also facilitated the collection of many relevant performance indicators—quantitative data that enables the Court, the ASP and outside observers to track changes over time in judicial performance (and to compare it to the practice of other international criminal courts). Still, one may question how central these key goals are for evaluating the over-all effectiveness of the ICC. In fact, it appears as if the key goals are a hodgepodge of process and outcome goals, which are related to different evaluative criteria—judicial effectiveness, cost-effectiveness, and efficiency—and do not sufficiently relate to the core business of the ICC—e.g., ending impunity and developing international criminal law. Moreover, one may question whether the Court is sufficiently sensitive to the risk of availability bias, which might lead to distorted evaluation of the fulfilment of the four key goals, and of the overall operations of the Court. Finally, one may question the choice of “primarily under the control of the court itself” as a reason for narrowly focusing only on the four key goals. Such a criterion results in an analysis that ignores the most important goals of the Court, and its application even to the four key goals is questionable.

Stahn Avatar Image Carsten Stahn, Ph.D., LL.M. Professor of International Criminal Law & Global Justice Leiden University

Is ICC Justice Measurable? Re-Thinking Means and Methods of Assessing the Court’s Practice

In many cases, the importance of ICC proceedings lies not only in the production of certain judicial outcomes (i.e. cases, trials, reparation), but in the transformation of certain normative discourses, the creation of common discursive spaces or the initiation of longer-term processes.

Summary

The effectiveness of international criminal justice is challenged from many sides.1 There is an increasing trend among international institutions to respond to critiques through the development of performance indicators. The ICC started to formalize indicators for its operation in 2015. Such instruments seek to reply to efficiency critiques, such as concerns related to cost or the length of proceedings. They are a double-edged sword. There is a risk that they trivialize the complex nature of international criminal justice. They face many methodological challenges. The effects of the ICC are more complex and diffuse than anticipated. Some of the most important effects of ICC justice are not measurable or quantifiable. Performance indicators are inherently linked to macro goals. There is a need to broaden perspectives. The assessment of the ICC requires a holistic account which views institutional performance in the context of systemic considerations and perceptions by a variety of stakeholders. The ICC not only matters to states or global audiences, but mostly to affected societies. It is thus important to determine what justice goals are important for local communities. In many cases, the importance of ICC proceedings lies not only in the production of certain judicial outcomes (i.e. cases, trials, reparation), but in the transformation of certain normative discourses, the creation of common discursive spaces, or the initiation of longer-term processes. Complementarity is an important indicator for the success of the Court that complements other factors such as fairness, independence, and accessibility of justice.