By Practioners, For Practitioner: ABA’s ICL Best Practice Project Publishes Guidance on Judgment Drafting

[Christopher “Kip” Hale is the chair of the American Bar Association’s International Criminal Law Practice Project (ICLPP) and is currently the chief of staff to the Atrocity Crimes Advisory Group (ACA) for Ukraine and Georgetown Law’s International Criminal Justice Initiative.

David Akerson is past chair of the American Bar Association’s ICLPP and a former prosecutor at the Yugoslavia and Rwanda tribunals.

Glenna MacGregor is past chair of the American Bar Association’s ICLPP and previously worked in the OTP of the ICTY and for the Kosovo Specialist Prosecutor. She is currently the President and CEO of Keesler Immigration Law.]

A tremendous amount of public (and private) attention is devoted to the authorities that prosecute atrocity crimes, whether it be at a tribunal like the International Criminal Court or a domestic jurisdiction tackling, for instance, a universal jurisdiction case in a distant conflict. There are good reasons for this level of attention as investigators and prosecutors are the engine of any criminal justice system; without them, the process stands still. By extension, the effectiveness and efficiency of international criminal proceedings are often measured by how effective and efficient prosecution authorities are. Yet, much more attention should be placed on the judiciary along these same lines. How well judges, and most importantly, chamber staff perform is another critical component in measuring just how successful international criminal processes are. 

Putting aside the substance of judgments (which often engenders heated debates, to say the least), it is commonplace for the timeliness and length of international criminal judgments to be subjected to withering complaints as well. It is not hyperbolic to state that the total number of years that a typical international criminal case takes (from the start of court proceedings to final judgment) is often ballooned by time waiting for a judgment to come down, to say nothing of the time spent waiting for the litany of other court decisions to be issued, from, e.g., interlocutory appeals to decisions on disclosure. These long waits for judgments are so vexing that there have been allegations that judges deliberately sit on issuing them for personal or inappropriate reasons. Attempts to expedite proceedings via procedural changes and manuals have made some positive impact, yet the true extent of their utility remains unclear at best and often only address some of the reasons for delays. Where there is a clear lack of attention has been on the aptitude of not only judges (e.g. a huge focus of the Assembly of States Parties and civil society has been on the election of competent ICC judges with a new crop elected this past December who are sworn in this March) but more so on the competences and know-how of chambers staff. Like in almost all facets of international criminal proceedings (from allegations to appeals), practical guidance on how best to do one’s job is left almost completely unaddressed, relying instead on veiled hopes that staff will simply “figure it out” or learn from others who themselves were placed in similarly isolated situations. In short, much of the problems that affect the timeliness and length of international criminal judgments begin with a lack of attention on providing practical provisions of support to international criminal law practitioners.  

It is for these very reasons that the International Criminal Law Best Practices Project was created and that its first publication tackled the subject of judgment drafting. However, by way of background, it is helpful to discuss how such a lack of attention to the needs of practitioners came about in the first place. 

The modern practice of international criminal law has grown considerably since the United Nations International Criminal Tribunal for the former Yugoslavia was established in 1993. Subsequent ad hoc and hybrid UN tribunals, the formation of the International Criminal Court, and the steady rise of domestic jurisdictions engaging in atrocity crimes proceedings have all contributed towards the creation of a sophisticated legal practice. However, the inherent cross-jurisdictional nature of the field has made it difficult to codify best practices, standards, guidance, common experiences, and the like. Additionally, the transient nature of seasoned practitioners throughout their professional lives presents another obstacle to the creation and maintenance of a library of institutional knowledge. Though national jurisdictions and individual practitioners endeavor to share such knowledge across institutions and national borders, an easily accessible and “live” collection of best practices has been missing from the field.  

Enter the International Criminal Law Practice Project (ICLPP), an international initiative hosted and supported by the American Bar Association’s Criminal Justice Section, which was organized to collect such knowledge and fill this large gap in practical know-how. Unlike other similar (and helpful) initiatives, the premise of this project is not a traditional “top-down” approach where a relatively small set of experts develop a work product and then release it for public consumption, rarely if ever revisited. Instead, the ICLPP uses a hybrid, “bottom-up” approach where a large community of international practitioners from varied backgrounds and perspectives contribute their experiences and draft collaboratively a series of “best practices” products on a range of timely topics in ICL practice.

In the spring of 2022, members of the ICLPP Steering Committee took up the topic of judgment drafting in the context of international criminal law proceedings. The Committee perceived that as public documents collecting voluminous evidential records and articulating the final judgment on accountability for grave international crimes, ICL judgments were arguably the fulcrum of debates surrounding ICL institutions’ effectiveness. The Committee along with members of the ICLPP Council of Experts explored how to describe a drafting process that would be accessible across institutions without compromising standards of excellence and integrity necessary to ensure a finished product that could withstand international scrutiny from a range of interested parties. The aim was to provide a drafting process that can provide a firm procedural foundation, which ultimately will not undermine or distract from the substance within.  

The sub-group prepared a draft version of the project’s first publication, “Judgment Drafting,” which was subsequently circulated to the ICLPP’s approximately 50-person Council of Experts for their review and input. After their input was incorporated, the draft became a final product, endorsed by the ICLPP Steering Committee and Council of Experts. This work provides the blueprint for creation of a document that reflects years-long trials involving thousands of items of evidence, contains the framework for history’s most important judgments, withstands public scrutiny and satisfies the international community’s need for accountability. 

This first publication provides comprehensive guidance on the unique adventure of drafting a judgment at an international criminal tribunal, “mechanism”, or similar institution issuing a judgment in an ICL case. The guidance focuses the reader on the broad range of considerations that the bench and its chamber staff should take stock of from the earliest stage of the Chamber being seized of a matter. These considerations include the many external ones such as the varied types of audiences and consumers of international criminal judgments, an often-overlooked point given that the general public and civil society have both stark and similar interests in reading such judgments. Considerations also include, most notably, the proverbial nuts and bolts that a high-performing Chamber does well, which in the publication takes shape in chapters dedicated to the structuring a drafting team, drafting a methodology and planning, overcoming challenges such as adhering to protective measures and preparing for delays related to translation, and other pragmatic topics. Crucially, the publication addresses head-on the two thorny subjects of: 1) building a reasoned judgment consistent with the law and fact that will withstand external scrutiny as well as 2) how to right size the length of judgments so that Chambers takes the correct steps to build an appropriate length judgment instead of throwing everything into a judgment with the false hope doing so will avoid all potential pitfalls. The ICLPP envisions that this guidance should be readily available on drafters’ virtual bookshelf to consult for specific questions or for overall drafting guidance.

Future publication topics of the ICLPP include: disclosure challenges in ICL practice (one of the more vexing problems that beleaguers virtually all international criminal trials); proposals related to judicial selection and evaluation (again, who becomes international criminal judges and how their work is constantly evaluated remains a subject that deserves more attention from stakeholders; streamlining the pre-trial phase and suggestions for shortening trials (tackling the length of trials by memorializing some of the best tips from seasoned practitioners who know what has worked and what has not).

This organic “for practitioners, by practitioners” approach employed by the ICLPP has the advantage of being more reflective of the diverse community of atrocity crimes practitioners, and consequently a more trustworthy resource of practical knowledge. The intended primary audience for this and future publications is practitioners in the criminal investigation, prosecutions, defense, victim representation, and/or adjudication cases of atrocity crimes as well as similar cases of mass human rights violations. 

As a secondary matter, the intended audience of this initiative is policymakers and diplomats who are involved in the field of international criminal justice at the international or domestic levels. With insight into the practice of international criminal law, this work product will be a unique resource for such policymakers who may work on ICC matters, the creation of a new hybrid court, or the creation of a domestic chamber for atrocity crimes.