In association with the International Commission of Jurists

International Criminal Law

28 Jan

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall University School of Law. This post is written as a comment to Stuart Ford's guest post, published yesterday.]

Stuart Ford’s article, Complexity and Efficiency at International Criminal Courts, seeks to address the common misperception that international criminal trials are not only expensive, but also inefficient.  Professor Ford’s article focuses principally on the International Criminal Tribunal for the Former Yugoslavia (ICTY), which, in terms of the total number of accused, is the largest international criminal tribunal in history.  Professor Ford seeks to measure whether the ICTY has, in effect, provided good bang for the buck.  He concludes, rightly I believe, that it has.    Although his primary aim is to develop a way for measuring a tribunal’s efficiency, Professor Ford’s article also has important implications for broader debates about the merits of international criminal justice.

Professor Ford defines efficiency as the complexity of a trial divided by its cost.  While trials at the ICTY often have been long and expensive, they have also been relatively efficient given their complexity.   Further, the ICTY preforms relatively well compared to other trials of similar complexity, such as terrorism trials conducted in the United States and Europe, as well as trials that are somewhat less complex, such as the average U.S. death penalty case.   Garden-variety domestic murder trials, which at first blush might appear more efficient than the ICTY,  do not provide a useful point of comparison because they are much more straightforward.

Once complexity is factored in, the ICTY appears comparatively efficient.  Its record is more impressive considering that an often recognized goal of international criminal justice—creating a historical record of mass atrocities—can make the trials slower and less efficient in terms of reaching outcomes for specific defendants.

Professor Ford also finds that the ICTY performed more efficiently than the Special Court for Sierra Leone (SCSL), thus challenging a perceived advantage of such hybrid tribunals over ad hoc tribunals like the ICTY.  His conclusion suggests the need for future research on comparisons among tribunals within the international criminal justice field, which might have implications from an institutional design perspective.

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27 Jan

[Stuart Ford is an Assistant Professor at The John Marshall Law School.] It is common to see people criticize international tribunals as too slow, too expensive, and inefficient.  Professor Whiting even argues this is now the consensus position among “policymakers, practitioners, and commentators (both academic and popular).”  But are these criticisms accurate?  At least with respect to the International Criminal Tribunal for the former Yugoslavia (ICTY), I believe the answer is no. Most of those who have criticized the ICTY are implicitly comparing the ICTY to trials in domestic courts.  And indeed, ICTY trials take much longer than the average domestic criminal proceeding.  For example, in 2011 nearly 70% of criminal trials in federal courts in the United States took one day or less to try and there were only 37 trials that lasted more than 20 days.  See here at Table T-2.  In comparison, the average ICTY trial has lasted 176 days.  So, it is true that trials in the U.S. are much quicker than trials at the ICTY, but it is also true that ICTY trials are vastly more complex than the average domestic trial, and we generally expect more complex trials to be more expensive.  As a result, it is misleading to compare the cost and length of the ICTY’s trials to those in other courts without first accounting for the complexity of those trials. Consequently, I propose a method for measuring trial complexity based on the number of trial days, trial exhibits and trial witnesses needed to complete a trial.  The figure below shows the relative complexity of trials at the ICTY and in the U.S.  As you can see, the average domestic trial barely registers on the chart, and even the Lucchese trial, one of the most complex trials ever conducted in the U.S., is only about half as complex as the ICTY’s most complex trial.  But measuring complexity is just the first step to understanding whether the ICTY is too slow and expensive.

Figure 1

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22 Jan

Jess Bravin has an interesting report out in Thursday's WSJ (subscrip. req'd)  detailing U.S., UK, and EU support (and funding) for a team of investigators to gather evidence of war crimes by Syrian government and military officials. For nearly two years, dozens of investigators funded by the U.S. and its allies have been infiltrating Syria to collect evidence of suspected war crimes, sometimes...

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19 Jan

[Dr. Chantal Meloni teaches international criminal law at the University of Milan is an Alexander von Humboldt Scholar at Humboldt University of Berlin.]

1. A new complaint (technically a Communication under art. 15 of the Rome Statute) has been lodged on the 10th of January to the Intentional Criminal Court, requesting the Prosecutor to open an investigation into the denounced abuses committed by UK military forces against Iraqi detainees from 2003 to 2008. The complaint has been presented by the British Public Interest Lawyers (PIL), representing more than 400 Iraqi victims, jointly with the Berlin-based European Centre for Constitutional and Human Rights (ECCHR). The lawyers’ allegation is that grave mistreatments, including torture and other degrading abuse techniques, were commonly used during the six years in which the UK and Multinational Forces operated in Iraq. According to the victims’ account the mistreatment was so serious, widespread and spanned across all stages of detention as to amount to “systemic torture”. Out of hundreds of allegations, the lawyers focused in particular and in depth on eighty-five cases to represent the mistreatment and abuses inflicted, which would clearly amount to war crimes. 2. This is not the first time that the behaviour of the UK military forces in Iraq is challenged before the ICC. In fact, hundreds of complaints have been brought on various grounds both to domestic courts and to the ICC since the beginning of the war. As for the ICC, after the initial opening of a preliminary examination, following to over 404 communications by Iraqi victims, in 2006 the ICC Prosecutor issued a first decision determining not to open an investigation in the UK responsibilities in Iraq. According to that decision, although there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhumane treatment, the gravity threshold was not met. Indeed the number of victims that had been taken into account at that time was very limited, totalling in all less than 20 persons, so that the Prosecutor found that the ‘quantitative criteria’, a key consideration of the ICC prosecutorial strategy when assessing the gravity threshold, was not fulfilled. Therefore, what is there new that in the view of the lawyers warranted the re-proposition of such a request? In the first place it shall be noted in this regard that during the eight years that passed since then many more abuse allegations have emerged (see the Complaint, p. 110 ff.). Most notably, hundreds of torture and mistreatment allegations show a pattern - spanning across time, technique and location - which would indicate the existence of a (criminal) policy adopted by the UK military forces when dealing with the interrogation of Iraqi detainees under their custody. In the words of the lawyers, “it was not the result of personal misconduct on the part of a few individual soldiers, but rather, constituted widespread and systematic mistreatment perpetrated by the UK forces as a whole”.
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17 Jan

The decision was given orally, and no written decision is available yet. But here is what The Standard's online platform is reporting: The International Criminal Court has conditionally excused Deputy President William Ruto from continuos presence at trial but with some conditions. The judges outlined nine conditions during the Wednesday ruling. ICC Presiding Judge Eboe-Osuji in the oral ruling said: “The Chamber hereby...

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14 Jan

Standard Digital News, the online platform of The Standard, one of Kenya's leading newspapers, published a long article yesterday entitled "Did State Parties Hoodwink Kenya, African Union on ICC Attendence?" Here are the opening paragraphs: KENYA: Did the Rome Statute Assembly of State Parties hoodwink Kenya that the country’s chief executives would be excused from physical presence at their trials? This...

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10 Jan

Manuel Ventura, the director of the Peace and Justice Initiative, has published two excellent posts at Spreading the Jam (here and here) that criticize the specific-direction requirement -- and my defence of it. I cannot possibly address all of the points that Manuel makes, but I do want to respond to his understanding of the role that customary international law plays at the ICTY...

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06 Jan

Gidon Shaviv called it. The Muslim Brotherhood does indeed believe that it can accept the ICC's jurisdiction on an ad hoc basis because it is still the legitimate government of Egypt: Just how successful the ICC action will be is unclear. Egypt is one of the few countries that have not accepted the ICC’s jurisdiction. However, Mr. Dixon and other members of the legal team said the...

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03 Jan

So this is baffling: The international legal team representing the Muslim Brotherhood has filed a complaint to the International Criminal Court, reported state-owned media agency MENA. The team has previously said on 16 August and on 15 November that, following their investigations, they have gathered evidence showing that members of the “military, police and political members of the military regime have committed...

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01 Jan

[Dr. Megan Fairlie is Associate Professor of Law at Florida International University]

A brief consideration of the history of replacement judges at the ICTY reveals an increasing disregard for the rights of the accused in favor of avoiding costly and time-consuming re-hearings. Initially, part-heard cases could not continue with a replacement judge without the accused’s consent. Then, as “consent was only a safeguard,” the rules were amended to permit the two remaining judges to independently decide when continuing a part-heard case “would serve the interests of justice.”

Now, the Tribunal’s mismanagement of its first ever judicial disqualification has taken the matter to a new low, with Vojislav Šešelj’s responsibility for war crimes and crimes against humanity set to be decided  by three judges, one of whom joined the case nearly two years after closing arguments were heard.

Although apparently united in their aim to see that the case continues no matter what, neither the Tribunal’s Acting President nor Šešelj’s newly constituted Trial Chamber can plausibly explain why allowing a new judge to enter the picture part-way through deliberations is in any way tenable under the ICTY Rules or compatible with Šešelj’s statutory guarantee of a fair trial.

Back in September, the Acting President decided that when a new judge replaces a disqualified one pursuant to Rule 15, Rule 15 bis should govern the procedures to be followed post-replacement. The latter rule permits ongoing proceedings to continue with a replacement judge pursuant to the accused’s consent or by judicial fiat. Problematically, however, 15 bis is limited to part-heard cases, a description that hardly pertains to the “more advanced stage” of Šešelj’s proceedings. As a result, the September order concluded that the provision ought to be applied mutatis mutandis.

The Šešelj facts, however, illustrate why this proposal was deeply flawed.

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30 Dec

Train wreck, fiasco, disaster, dumpster fire, bad joke, kangaroo court, show trial -- take your pick, the description applies. Eviatar's post at Just Security a while back is a must-read; here is but one particularly disturbing snippet: Recent pre-trial hearings have revealed, for example, that the Guantanamo courtroom was equipped with microphones able to eavesdrop on privileged attorney-client communications; that the CIA...

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