When the International Criminal Court was first formed in 2002, many feared that it would become too powerful. It turns out that the problem with the ICC is not that it is too powerful, but that it is too weak.

One reason the U.S. government was reluctant to sign the treaty establishing the court was that it feared that American soldiers would be tried by the court for what some on the left view as war crimes. The Israelis had similar concerns. Others feared a court that could use the armed forces of one nation to go after criminals in another, take them to be tried in a third, and imprison any convicted in still another, as if there were a world government. There also was fear that these alien tribunals would adopt alien or hybrid procedures to railroad the defendants in service of some new mega-criminal law.

In reality, its own bureaucracy has kept the ICC from becoming anything approaching tyrannical—let alone effective. Procedural and substantive deficiencies have marred the work of the court, leading to lengthy delays and frustration. In ten years of existence, the ICC has opened formal investigations into 28 of the most serious atrocities and has conducted cases against a number of the alleged perpetrators. Yet, as John Bellinger recently noted in the Washington Post, it has completed just one, raising concerns regarding the effectiveness of the court.

Given the complex and often political nature of international trials, some delay is to be expected. But the glacial proceedings that are now commonplace pose three serious problems. The first concern is a practical one: long trials are expensive, and they consume resources with such veracity that international tribunals are often unable to carry a sizable caseload or deal swiftly with new crises. The second concern verges on the philosophical. Criminal courts across the globe recognize the basic right of accused persons to trial with undue delay; however, international tribunals’ demonstrated inability to assure this right threatens both their functionality and their perceived legitimacy worldwide. The third concern is utilitarian: that the international tribunals’ inefficiency may ultimately undermine whatever deterrent effect they have on the world’s most malevolent wrongdoers.

Justice delayed is indeed justice denied, not just to the accused and their past victims, but also to the present and future victims of wrongdoers who might be deterred by swifter justice. But the delays that have plagued the ICC and companion courts are not inevitable. The concerns that have been raised can be substantially addressed by a number of relatively modest changes in procedure and in the courts’ approach to obstructive defendants.

Complicated Procedures

A June 2011 report by the War Crimes Research Office at American University’s Washington College of Law catalogued a plethora of procedural issues facing the ICC, painting a picture of a Court in real disarray. The delays start even before trial. Judges in pretrial chambers in international proceedings sometimes take months to respond to applications for warrants of arrest or issue summonses. Leaving suspected war criminals at large while the court dithers over such applications not only disillusions those who look to international courts to mete out justice, but also gives alleged criminals the chance to escape their grasp.

This delay, however, is among the easiest to cure. As the report notes, the International Criminal Tribunals for the former Yugoslavia and Rwanda and the Special Court for Sierra Leone have substantially streamlined their processes, permitting the approval of indictments and the issuance of arrest warrants on short notice, even in cases against high-profile offenders. Permitting single judges to approve indictments, or decide when the issuance of a warrant is appropriate (rather than panels), and simply setting (and enforcing) deadlines for judges to make them issue warrants more quickly can make a significant difference.

A more difficult source of delay is too few judges. The obvious solution to this problem is the appointment of additional judges, but this solution can be expensive. (Indeed, as the Financial Times recently noted, ICC judges receive an annual tax-free salary of €180,000 [more than $230,000]). Thus, some courts elect “ad litem judges” – judges assigned to a particular case for its duration—from the regions involved in pending proceedings. This solution not only can reduce delays that otherwise arise from the need for interpretation—it can also shore up a tribunal’s perceived legitimacy, as the presence of local jurists can quiet the local public’s fears of bias and foreign interference.

Yet, even when the pool of judges may be sufficient, requirements for collegial decision-making by “panels” for the most uncontroversial administrative portions of a proceeding can so drain the pool that scheduling more than a handful of cases at a time is a pipedream. For this problem, the reform is obvious—permit more single-judge decisions—but it comes at a cost in legitimacy and, some would say, accuracy. This cost can be reduced by allowing interlocutory appeals (appeals before a final judgment) of errant single-judge decisions, but this cure may be also be worse than the disease because of the delay it entails.

Another major source of delay is the international criminal courts’ preference for live testimony. This makes sense where key evidence is testimonial, not documentary, for live witnesses can be cross-examined by opposing parties and observed by the judges (international criminal courts do not use juries). However, a significant amount of the evidence in international criminal trials often relates to background events, jurisdictional prerequisites, and impact on victims, all matters collateral to the conduct of the accused. Documentary evidence, or testimonial evidence in the form of depositions taken outside the court, will often suffice to prove these matters.

The courts have also lengthened trials by adopting restrictive rules concerning witnesses, such as rules banning “witness proofing”—a lawyer’s reviewing of testimony with witnesses before their appearance in court. While such a ban is intended to reduce witness tampering, it also increases surprise, sometimes necessitating the recall of a witness after she has recanted testimony or breaks in testimony following the witness’s emotional breakdown, delays that could be avoided or reduced by liberalized rules about witness preparation before trial. Bans on leading questions are also common in international criminal tribunals. But leading questions are the most efficient way to bring out essential background and other non-contentious evidence and to elicit direct and succinct responses on cross-examination. These restrictions all force the courts and parties to take the long way around, even if they arrive, at length, at the same place.

Some rules are already in place to reduce these kinds of delays. As the American University report points out, the ICC’s governing documents make some exceptions to the general presumption in favor of in-court witness testimony. The Rome Statute allows for viva voce (oral) or recorded testimony of a witness by means of video or audio technology, as well as the introduction of documents or written transcripts,” and the ICC’s Rules of Procedure and Evidence provide that a Trial Chamber may allow the introduction of previously recorded audio or video testimony of a witness (or the transcript or other documented evidence of such testimony), as long as both parties had the opportunity to examine the witness when the recording was made, or the witness is available for live examination (and his testimony is essential). That said, the ICC’s Trial Chambers have yet to make much use of these provisions.

Finally, too many interlocutory appeals are yet another cause of delay in international criminal cases. Trial courts start the problem by waiting far too long to decide parties’ requests for permission to seek interlocutory appeal. The appeals chambers then often take months to decide the issues they review, during which the trial below is often stayed. Ironically, moreover, notwithstanding these inordinate delays, the resulting opinions are often so brief and conclusory that they offer insufficient guidance to the lower courts, possibly inviting new errors and future appeals on the same or similar subjects. The interlocutory appeals process, in other words, labors mightily (and at length) without offering much, if anything, by way of systemic guidance.

The clearest solution would be to take a leaf from the U.S. federal judicial system and strictly limit the availability of interlocutory appeal. The “final judgment rule” generally requires parties in federal court to wait until a final judgment before appealing, thus mooting many appeals and economizing on the rest by making the appellant “save up” its claims of error for one try. At the same time, there are some cases in which interlocutory appeal could speed the case if an immediate appellate decision could either avert a long and expensive trial or significantly alter the substance of that trial. Any limitation on interlocutory appeal should ideally leave room for exceptions for such cases (as, indeed, the U.S. system does by statutory exception). Alternatively, the international criminal courts could at least impose time limits on both decisions on requests for leave to appeal and on the resulting appeals themselves. More problematically, it could perhaps encourage appeals chambers to provide more substantive reasoning for their decisions, so that any delays caused by the appellate process contribute to more expeditious proceedings in the long run.

Difficult Defendants

Many delays in international criminal tribunals are caused by the attempts of accused persons to disrupt or boycott the proceedings. This oft-employed tactic has triggered two very different types of responses from international tribunals.

The more extreme response (but the one that typically results in the least delay) is to require defense counsel to continue to represent the accused as though he were acting under the accused’s instruction, but without his actual cooperation. For example, after a series of adverse rulings in the trial of Jean-Bosco Barayagwiza, a former Rwandan official who faced genocide charges before the International Criminal Tribunal for Rwanda (ICTR), a frustrated Barayagwiza fired his assigned lawyers and refused to attend any further hearings, telling the tribunal that it was incapable of rendering “independent and impartial justice.”

But when the fired lawyers filed a motion to withdraw, the ICTR denied the withdrawal motion because the tribunal’s rules only permitted withdrawal only “in the most exceptional circumstances.” The Chamber declared that its decision was “in the interest of preserving the Accused’s rights,” in hopes that Barayagwiza would change his mind after “further reflection.” When this hope was dashed, his attorneys refiled their motion, now arguing that continued representation of Barayagwiza would violate the ICTR Code of Conduct, as well as many national ethical codes that forbade attorneys from representing clients who have terminated their mandate. The ICTR again rejected their motion, noting that Barayagwiza’s lawyers were not obligated to recognize their firing when it was part and parcel of his attempt to boycott the proceedings. It cited the ICTR’s Rules and Code of Conduct, which required court-appointed counsel to “ensure that the Accused receives a fair trial” by “mount[ing] an active defence in the best interest of the Accused.” The ruling avoided the delay that appointing new counsel, or letting the accused represent himself, would cause, but only at the cost of a shotgun wedding between the accused and the lawyers he wanted to fire.

Some, like Southern Methodist University’s Jenia Iontcheva Turner, cite the Barayagwiza case as an example of an international tribunal that has gone too far to prevent delay. Indeed, locking a reluctant accused to assigned lawyers over his objection violates codes of conduct which often require that attorneys cease their representation after being discharged by a defendant. It also leads to a serious conflict of interest: attorneys must simultaneously consider their clients’ interests and satisfy the demands of the tribunal. Additionally, a discharged attorney’s continued “representation” of a defendant can create the dangerous illusion that the defendant’s interests are being defended, when in reality the defendant is taking no role in his own defense.

A more forgiving, but also more dilatory, response to such tactics by the accused is to appoint “standby counsel” (sometimes called “amici curiae”) to replace the counsel fired by the boycotting defendant. Standby counsel take over with the understanding that they are merely representing the accused’s interests in the abstract—the accused’s objective interests as standby counsel see them. Supporters of this approach argue that the “standby counsel” label makes the mandate of such attorneys clear to the public, the defendant, and (perhaps most importantly) to the attorney himself. But “reading in” the new lawyers also can take substantial time, often in the middle of trial. Appointing standby counsel may therefore simply substitute one delay for another.

It also does not necessarily avoid or reduce the delay caused by obstructive behavior of the boycotting defendant. Perhaps the most effective response to such a defendant is to find that he has “forfeited” certain fundamental rights by his behavior. Those rights and procedural protections are an amalgam of generally-shared due process principles from across the globe and are often the product of an uneasy marriage of common law and civil law rules. For example, an uncooperative defendant may be denied the right to counsel of his choice, or the right to represent himself. Defendants who threaten or harm witnesses may be denied the right to confront witnesses. Boisterously disruptive defendants can even be evicted from court and tried in absentia.

But international courts are usually reluctant to take away the already-diluted rights afforded to criminal defendants. They fear that stripping rights from the accused (even for good cause) will merely delegitimize the judicial process, which is exactly what the obstructive accused is seeking. These tribunals maintain that “the integrity of the proceedings” must ultimately be protected “to ensure that the administration of justice is not brought into disrepute.” They also often require that responses to disruptive behavior must be proportional to the offense. In other words, curbing the obstructive defendant is always a delicate balance between delegitimizing the process and tolerating delay and diversion.

A Long Road to Reform

Much work remains before international criminal tribunals are truly a “finished product.” Partly self-inflicted procedural delays and histrionic obstruction by accused parties currently serve as severe impediments to achieving the speed and efficiency that mark the best criminal justice systems.

But the impediments need not be permanent, as proposals by scholars and incremental reforms by the courts themselves suggest: justice can be done without delay, even if it will take time to figure out how to do so.

Kyle T. Jones is a third-year student at the George Washington University Law School and a member of the George Washington International Law Review.

Image: Flickr/Charles Hutchins.