In association with the International Commission of Jurists

North America

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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24 Nov

A few days ago, in response to reports of an imminent deal between P5+1 and Iran concerning Iran's uranium enrichment, Tyler Cullis and Ryan Goodman debated whether Iran has a "right" to develop nuclear power for civilian purposes. Tyler argued that Iran does, citing (inter alia) Art. IV of the Treaty on Non-Proliferation of Nuclear Weapons (NPT): Nothing in this Treaty...

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16 Nov

A couple of weeks ago, Mother Jones blogger Kevin Drum said he was surprised that Syria has, by all accounts, voluntarily given up its chemical-weapons capability: I don't really have any comment about this, except to express a bit of puzzlement. As near as I can tell, Bashar al-Assad is really and truly sincere about destroying his chemical weapons stocks.1 But why?...

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06 Nov

The debate over autonomous weapons is not so visible in the United States, but the ban campaign launched by Human Rights Watch a year ago - an international NGO coalition called the "Campaign to Stop Killer Robots" - has been quite active in Europe and at the UN, where a number of countries raised the issue in their statements to...

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28 Sep

Reading Roger's post last week about how lower courts are interpreting the Supreme Court's ATS ruling in Kiobel made me recall that I've fallen down in posting papers to SSRN - including a new one in the Cato Supreme Court Review 2012-2013, "The Alien Tort Statute's Jurisidictional Universalism in Retreat."  The article (chatty and speculative, be warned, an essay aimed at a broader audience than ATS specialists or international law scholars) tries to set Kiobel and, for that matter, the ATS itself, in a wider frame of what jurisdiction is supposed to mean beyond its technicalities.  It contrasts the sweeping universalist language of 1980s-era ATS suits, and the belief of people like Judge Irving Kaufman (who wrote the celebrated Filartiga opinion) that they were pronouncing on "international law " through the exercise of universal jurisdiction, even though it happened to be in a US district court and applying distinctly US concepts through and through, with Kiobel's return to traditional jurisdictional categories. Whether the Chief Justice's application of the presumption against extraterritoriality or Justice Breyer's more capacious, yet still traditionally grounded, tests for jurisdiction, Kiobel signaled that the traditional grounds found, for example, in the Restatement of Foreign Relations are the ones that matter.  One could say, of course, that this has been true for a while.  After all, arguing that the ATS might require some conduct by someone that constitutes a violation of the law of nations, but doesn't take into account whether the law of nations recognizes that someone as having the legal capacity to violate the law of nations, and so merely a domestic statute providing a domestic civil remedy for something that need not be international law as such, but merely conduct that would, if done by some actor with legal capacity, violate international law - well, that isn't making any sweeping assertions about being international law or universal jurisdiction for the application of international law.  It's just a peculiar American statute that gate-keeps liability with a weirdly counterfactual reference to international law as it might be. International law in the subjunctive mood, maybe we could say.  But in that case, treating the statute as merely a domestic one with a weirdly constructed trigger, invoking a "law of nations" that we don't mean the way other people mean it, argues strongly for a traditional approach to jurisdiction - it's not universal jurisdiction anymore, because we're not pretending that our reference point is actually universal, but instead merely a claim of extraterritoriality.  So it doesn't seem quite so strange that the Chief Justice would invoke the presumption against extraterritoriality, because the thing, the statute, that plaintiffs propose to apply extraterritorially isn't truly a claim of universality, either.
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20 Sep

Eric Posner has a new Cassandra column at Slate, this latest one foretelling the doom of the ICC. There isn't much point in disagreeing with his basic thesis; no one knows at this point -- not him, not I -- whether the ICC will succeed. It is possible, however, to take issue with a number of assertions that Posner makes in...

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13 Sep

Apparently not, because yesterday's war propaganda editorial by Sebastian Junger beating the drum for attacking Syria is just spectacularly awful. I've been out of the fisking game for a while, but the editorial simply can't pass unmentioned. Every war I have ever covered — Kosovo, Bosnia, Sierra Leone and Liberia — withstood all diplomatic efforts to end it until Western military action...

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12 Sep

In his speech yesterday, Obama predictably took credit for the latest developments regarding Syria's use of chemical weapons: In part because of the credible threat of U.S. military action, as well as constructive talks that I had with President Putin, the Russian government has indicated a willingness to join with the international community in pushing Assad to give up his chemical...

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27 Aug

Yes, the title is intended to be provocative. And yes, I think chemical weapons are indeed terrible. But statements like this -- offered by John Kerry in thinly-veiled support for using military force against the Syrian government -- still give me pause (emphasis mine): What we saw in Syria last week should shock the conscience of the world. It defies any...

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