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.
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.