Review the Norms and Challenges of International Criminal Law

Abstract

This exploratory report documents International Criminal Court (icc) personnel's perspectives on the effectiveness of the icc. It examines practitioner views on the icc's goals, strengths, weaknesses, and effectiveness. Interviews with nine professionals from the Part of the Prosecutor, Defence force, and Chambers reveal several themes. Professionals agreed upon the icc's greatest strengths: its foundation and its symbolic value. They also named mutual weaknesses, including its reliance on country cooperation, challenges in administrative functions, and, from the perspective of largely Defense personnel, an unfair disadvantage against the Defense. While personnel often agreed upon which factors needed improvement, they diverged on precisely how to improve them. All the same, they alluded to several potential paths forward. Interviews ultimately suggested the Court has several areas requiring improvement, simply a solid foundation and considerable potential. These interviews coincide with ongoing reviews of the Court, providing a fuller moving picture of its effectiveness.

1 Introduction

The International Criminal Courtroom (icc), headquartered in The Hague, The Netherlands, is the world's first permanent international criminal court. ¹ Inspired past the advertisement hoc international criminal tribunals such as the International Criminal Tribunal for former Yugoslavia (icty), and International Criminal Tribunal for Rwanda (ictr), the icc was signed into existence in 1998 through the Rome Statue. Information technology officially became an contained international torso in 2002. Since then, according to its website, the icc has been tasked with 1) investigating and charging individuals who commit atrocity crimes of international concern, and 2) by doing that, contributing to long-term peace, stability and equitable evolution in post-disharmonize societies. ² It includes the Office of the Prosecutor, Chambers, Presidency, and Trust Fund for Victims.

Because of the pioneering nature of the icc as well every bit its prominent part in addressing atrocities at the international level, there is a vital need to understand how well it carries out its goals. However, due to the Court's relative youth, a lack of consensus of what its goals are and the consequent difficulty of defining and measuring a concept like 'effectiveness', in that location is relatively little empirical analysis of the Court's piece of work. Also, researchers have not explored the icc from the perspectives of its personnel. For the Courtroom to role optimally, information technology is critical to develop a further understanding of its goals as well as how dissimilar factors touch its proceedings.

To this end, some studies have analysed the icc's result on several outcomes and from various angles. Researchers take examined the Court's impact on deterrence of atrocity crimes (e.thousand., Jo and Simmons, ³ Rothe and Collins, ^iv Appel), ⁵ a country's likelihood of experiencing peace or continued violence (e.k., Prorok, ⁶ Hillebrecht, ^seven Dancy and Montal, ⁸ Kersten), ⁹ and victims' satisfaction (e.g., osji, ¹⁰ hrc, ¹¹ Zegveld), ¹² to name a few. In September 2020, external experts (a commission equanimous of eastward.g., judges, prosecutors, academics) appointed past the Assembly of State Parties (asp) published a written report on the icc's procedural effectiveness. ¹³ Using data from internal surveys such as a staff engagement survey and extensive interviews with a broad range of staff members, the experts paid special attention to improving the efficiency and cost-effectiveness of the Court. They review and brand recommendations to ameliorate a range of procedural processes inside the Court, including preliminary examinations, reparations, and internal governance. This adept report provides one of the first systematic assessments of the icc'due south procedural effectiveness and provides unique insights into the inner workings of the Courtroom.

Despite these aforementioned studies, there is a considerable gap in researchers' understanding of the icc'southward effectiveness and operation. Researchers have not nonetheless reached a consensus on the icc's effect on various outcomes such as peace, stability, or deterrence, and on how to measure out or model these effects. Likewise, though researchers such every bit Ford ¹⁴ examine the efficiency of international criminal courts and tribunals, there is all the same a famine of literature examining the procedural effectiveness of the icc. Finally, the perspective of icc personnel when examining the effectiveness and functioning of the icc has been largely neglected. While the recent adept report marks an important starting time pace on this forepart, it is a practise and policy-oriented study instead of an academic slice of enquiry.

In this political and academic landscape, which is marred by gaps, contestations and disagreements as to the evaluation of the icc's goals, functioning and effectiveness, the present explorative study is one of the offset to examine the perspectives of personnel who piece of work within the icc and experience first-hand how its everyday proceedings are carried out (though, see Clark ¹⁵ and the recent expert study ^xvi for examples of writings in which authors brand apply of interviews and/or personnel perspectives). Examining the effectiveness and functioning of the icc from the perspective of its personnel is a worthwhile practice considering practitioners work at the Courtroom on a day-by-twenty-four hour period basis. They are likely to be very familiar with its strengths and weaknesses from an internal perspective, and might offer considerations that outside observers are less likely to raise. Given the lack of research examining personnel's perspectives, icc practitioners could offer a unique lens through which to view the icc's effectiveness and functioning. This could assistance policymakers and researchers shape their understanding of the icc, its strengths, weaknesses, and potential paths forwards.

Afterward discussing methodology in Department 2, we describe and discuss results of our interviews focusing on the goals of the icc, its strength, weaknesses and recommendations, as discussed past our nine interviewees. The article ends with conclusions summarising our main findings and offering suggestions for futurity inquiry. By offering, to our cognition, one of the first analyses of practitioner perspectives on icc effectiveness, nosotros hope to contribute to scholarly and policymaking discussions regarding international criminal law's institutions, their possibilities, and their limitations. This word will advance both scholars' and practitioners' ability to understand the effect of the Court likewise as where and how it tin can improve in its pursuit to respond to global atrocities and enforce international criminal law.

two Methodology

To further the discussion on the icc, nosotros conducted semi-structured interviews with icc practitioners working in the Office of the Prosecutor (otp), Defence, and Chambers. We conducted ix interviews in total, each of which typically lasted 45–75 minutes. Respondents were gathered through snowballing methods subsequently making contact with initial respondents through our networks. Respondents ranged in terms of the amount of time they had worked at the Courtroom and/or in other international criminal law organisations, with two having worked less than 5 years and the other seven for v or more. Of the nine respondents, four worked in Defence, three in Chambers, and two in otp. During the interviews, respondents discussed what they identified every bit the goals of the Court, areas of strength, areas of weakness, and what they saw as an platonic icc (see a more detailed list of interview topics in Appendix A). Interviews were audio-recorded, transcribed, and and so analysed for thematic points of convergence and difference across the interviewees and their respective sections (i.due east., Defense force, Chambers or otp), as detailed in the results department.

In that location are some limitations to our study that should be noted. Outset, our snowballing method offered us unique access to icc practitioners; however, it can also be the source of some bias. The themes mentioned in the interviews might reflect those of a given network at the icc, and this should be taken into account when assessing the generalisability of findings. The utilize of snowball sampling means that we used respondents' networks to contact other respondents; consequently, equally tin can exist noted past the distribution of respondents described to a higher place, our sample over-represents Defense force personnel. Relatedly, the sample size of this study (n = 9) is considerably small, which too limits generalisability. While we make utilize of respondents' quotes when they are representative of a recurring theme we noticed in our interviews, we practise non attempt to suggest that these quotes or themes necessarily reverberate the views of respondents' respective sections or those of the icc as a whole. Also, we have intentionally included quotes from respondents from all sections we interviewed (otp, Chambers, and Defence force), just because Defense personnel is over-represented in our sample, they are most oftentimes-quoted. In sum, nosotros cannot, with these data, claim that our findings are generalisable. While the sample size is small and our interviewees might non reflect the general views of their respective sections, nosotros observe it useful to comprise the vox of respondents and quotes that exemplify potential themes hereafter researchers might discover in exploring the perspectives of icc personnel. Information technology is our hope that this explorative piece of enquiry is ane of the first steps in what volition exist a string of contributions examining the icc from the perspective of its personnel.

It should also be noted that two of our respondents had, at the time of interviews, worked at the icc for less than five years. While this might limit their exposure to certain Court proceedings, nosotros argue that the diversity in tenure at the icc is an reward of our report. Being professionally 'young' at the icc does not dismiss one's viewpoints of its strengths and weaknesses, and including these practitioners could provide valuable insight. Information technology could be, for instance, that those who stay at the icc for long periods of fourth dimension tend to exist more forgiving of its shortcomings, or that they go more conceited with issues that younger workers are more than likely to discover. Likewise, including more tenured professionals (who make upward the majority of our respondents: seven of nine) provides perspectives from those who take worked with the icc and its process for extended periods of fourth dimension. These more than tenured professionals have a range of experiences to pull from in providing their insights. Both perspectives, therefore, are valuable.

3 Results

Personnel perspectives on the effectiveness of the Court featured several points of convergence and divergence. Nosotros observed several themes in practitioners' perspectives on what they saw as the primary goals of the icc, its strengths, its weaknesses, and practitioners' recommendations for continued improvement. We likewise noted themes in how practitioners thought the Court should be evaluated, equally well as their outlook on its future. Such themes are detailed below.

iii.1 Goals

First, we asked participants about what they perceive to be the primary goals of the icc. ¹⁷ Beyond interviews, respondents showed little convergence on what they proclaimed to be the main goals of the icc (encounter Table 1). They often best-selling more than one goal, suggesting that identifying a clear goal is not very straightforward. Interestingly, this phenomenon reflects the larger conversation amongst international law scholars and institutions regarding the role of the international community and the icc itself: opinions on what the role of the icc in dealing with atrocities (and indeed, the international community at big) is, too every bit what it should be, take varied greatly between scholars. ¹⁸ Table 1 below includes the identified goals, the total number of respondents who mentioned them, and the frequency with which they were mentioned by department (Defence, Chambers, or otp).

For respondents, differing ideas of the Court's goals stemmed from differing ideas on why the icc was created. For example, ii respondents, both from Defence, explicitly referred to the icc as a court of law, similar to any other courtroom, but with international jurisdiction. These respondents, therefore, saw its primary goal as to agree impartial and independent trials to assess whether the accused was guilty of the charges brought against them beyond a reasonable dubiousness. Ane respondent noted their disturbance at some co-workers' ideas of the icc's purpose equally a mechanism to hold people answerable and 'end impunity', noting,

For me, the goal of the icc is to conduct trials and to serve justice. I know that for a lot of my colleagues…it'southward the thought of fighting impunity. And information technology's really funny, because when people would send you an eastward-mail, it was even like in the footer of their – of their email. 'It's the fight against impunity.' … From the very beginning, I idea, 'What do y'all mean, 'the fight confronting impunity?'' Because, justice tin as well exist giving someone a fair trial. (R1, Defence force)

This perspective clashed with vi other respondents' answers, all of whom explicitly mentioned that the Courtroom should end dispensation and concord perpetrators of heinous offenses accountable. For example, for one respondent, who worked in the prosecution, this meant that otp's primary goal was to have a loftier success rate of conviction, stating,

Well, I would say the chief goal of the icc is simply first to prosecute the nearly responsible ones of the heinous crimes we have at the Rome Statute. That would be the principal goal. And, if you lot want to talk more about otp and prosecution, it's just to take a success rate on that and to accept efficient investigations and prosecutions in courtroom…I'll say our principal goal equally the otp? Yes, to convict as much as possible people who are responsible for those crimes (R6, Office of the Prosecutor).

Another respondent, from Chambers, echoed the goal of ending dispensation. This respondent also described the importance of complementarity in this pursuit, explaining,

I recall for me, [the goal is] putting an end to impunity, definitely, for crimes that are not being…adjudicated elsewhere. Only at the same time, I think bringing justice, mainly to victims that would not otherwise get their justice elsewhere…The ultimate goal, for me at least, would exist to encourage domestic jurisdictions to do their jobs…[T]he icc should exist giving the example of how this should be washed, and why this should be done. And the hope should be – the ultimate goal should exist that, in the long-term, the icc should not exist anymore, hopefully (R2, Chambers).

Withal, there were other responses to this question. Ii respondents, both in Defense, saw the icc as primarily political (though, they did not necessarily believe this to be ideal). This politicisation, in their eyes, was in competition with the goal to conduct fair, impartial trials: instead, it led to the prioritisation of holding people accountable and providing justice to victims. One respondent assorted the icc's mural with those of domestic western courts, asserting,

Everyone [at the domestic courts] is there at the pursuit of a goal which is to determine, in a criminal case, whether or not the accused, beyond reasonable doubt, committed the crimes they are charged. When you walk into the icc, you're just immediately confronted with what I think…gives you lot a real sense of what the institution's there for. There's these…huge banners about dispensation and huge…monuments to testimonials of victims. And you lot're immediately struck by the fact that…the overwhelming message that'due south coming is 1 that'south more of sort of an international arrangement or human rights organization rather than strictly a court of law…The trials themselves, the criminal procedure is sort of a sideshow…to the bigger moving picture, which is a political appliance (R4, Defense force).

3 respondents, two in Defence force and one in otp, stressed that the Court's goal must be, in their view, primarily related to complementarity. The respondent from otp stated that the only primary goal of the icc was to provide a judiciary complement for situations where the domestic judicial system was unwilling or unable to hold trials, while the other two carefully qualified the icc's office by noting that it is just a cog in the larger system of international law. For all of these respondents, the goals of the icc were to footstep in where local courts could or would not, but they believed that encouraging domestic jurisdictions to build up their chapters and concord their own trials was a feature of that goal.

While a respondent from Defence was asserting that several of the aforementioned goals were simultaneously very important to the icc, they noted that the differing goals were sometimes in contest with each other. For instance, according to this respondent, the icc has a demand to deport fair, impartial, independent trials in its capacity every bit a court of police. However, it simultaneously aims to eliminate impunity, provide justice to victims, and complement domestic courts to fulfil its capacity as a production of the Rome Statute. The icc's office as a court of law and as part of a larger Rome Statute system, therefore, could hateful goals were simultaneously very important and in competition with each other.

Information technology should also be noted that only ane respondent, who worked in Chambers, saw promoting stability to be a primary goal of the icc. Eight of nine responses were direct related to providing justice, whether that meant through a dispassionate fair trial (in which case the goal is to determine whether there is sufficient evidence to convict someone beyond a reasonable dubiousness) or by seeking and holding perpetrators accountable (in which example the goal is to find enough testify for a conviction). If 1 considers existence a 'judiciary complement' and 'helping victims [in a country without a willing or able judicial system] forth' to be providing justice, then all respondents' answers described providing justice as a main goal. However, the ways in which this should exist done (e.m., finding plenty testify for a conviction versus a more dispassionate engagement) differed amongst respondents.

The divergence in how practitioners identify the principal goals of the icc is hitting, because divergent goals can lead to conflicting perspectives on how the Court should behave.

Dissimilar understandings of the goals of the icc translate into different ideas regarding what the Court should prioritise and how this should manifest in everyday operations. ¹⁹ It tin also affect perspectives on how the Court is evaluated. It is therefore notable that practitioner perspectives on the goals of the Court seemed to vary beyond respondents.

3.2 Strengths

We asked respondents well-nigh their views regarding the strengths of the icc. The most frequent answer to this open-ended question was something to the effect of the icc's 'good bones' and solid foundation. The Court's very beingness, in the eyes of most respondents, is a distinctive forcefulness of its function in the international arena. This sentiment is embodied in 1 respondent'due south quote:

I mean, it's happening, isn't it? [The icc is] up and running. Information technology's been going for nonetheless many years. Information technology'southward got a statute. It'south got huge, big kinks in it, simply information technology'southward generally pretty adept…A lot of civil society [is]really invested in it, and that does a lot of work in lobbying for the Court, inside states and within affected populations. So starting from scratch, I think, isn't an option, because the fundamentals have been in that location for quite a while (R4, Defence).

Another respondent echoed this thought, stating:

[The icc's biggest strength is] the symbolic value. Which, in a way, could be seen as something non that important, but for me, that is a really big part of the importance of the institution. It's what it represents. What its potential is…The fact that we have something similar the icc, the fact that there's so much coin and resources devoted to it…the fact that this is an institution which is…upward and running, and it does what it does, I recall, is amazing. And I think, I'one thousand very proud from that side of the institution…I think [some things] could actually be improved, only I think, yeah, what the icc represents is huge. Yeah, the fact that it's here. And I don't think that should be underestimated (R8, Chambers).

Table 2 details the strengths mentioned, their full frequency, and their frequency by section (i.due east., Defence, Chamber, otp).

Five respondents made reference to this 'good bones' phenomenon, mentioning either the consequentiality of the Court's symbolic value or describing the Court every bit riddled with potential. Several respondents answered that the Courtroom'southward existence had an result on other things, such as the ability to proceed with investigations and trials without relying on ad hoc institutions for individual situations, such as those that had to be fix in the cases of Rwanda and the former Yugoslavia. This, in their eyes, meant that the Court was an institution that was already prepared to act with little discover, and already had the institutions in place to handle international atrocity cases. Respondents thought the Courtroom was a viable commencement for enabling the international community to respond to international atrocities. One respondent from Chambers described this, saying;

[The icc'south biggest strength is], well, its mere existence. Because even if the institution as such is not every bit effective as desired or as promised, I'm pretty sure that it's all the same improve that it exists and it's already in place instead of going forward constantly relying on whether or not some other advert hoc volition be created, or some sort of investigative mechanism, and so on. And even where certain states are not parties to the Statute, it's nonetheless probably easier to go states to ratify a treaty sometime in the future…than it is to create an establishment altogether, with all the practicalities that that involves, with recruiting people and entering into a headquarters agreement and all these things. So, the fact that is already exists, that's definitely the biggest win. (R9, Chambers)

4 respondents specifically spoke to the Court's symbolic value. One respondent described the use of symbolic value for victims, stating:

I worked in a particular state of affairs, and, you know, I read witness statements. Many of them. And I could meet in them already the reference that was being made by them to the icc. And, you know, very ofttimes they don't even know the name of the establishment every bit such, only they know that something exists that'south going to assistance them to get justice again. To get some form of justice. And I think it does assistance (R1, Defence).

Two respondents mentioned that the icc encouraged domestic societies to commit themselves further to preventing and prosecuting international crimes, because the icc'southward presence both facilitated norm-building and increased pressure to stave off intervention. These respondents noted that it encouraged local dialogue regarding how to respond to atrocities. They likewise asserted that, when countries signed onto the Rome Statute, officially committing themselves to the prevention of and response to international crimes, fifty-fifty if only on paper, the civil population took note of this and created more than internal pressure on their governments to stand by those commitments. This symbolic feature of the Court's existence, while noted past practitioners, has too been described in the literature of international police force: Jo and Simmons, ²⁰ for instance, find that legitimacy-seeking political actors, who value citizen approving, might be deterred from committing barbarism crimes because of the Court.

While the Court'due south existence was the nearly oft-referenced 'biggest forcefulness' described in interviews, with big consensus surrounding its value and the subsequent effects of its presence, respondents also agreed on some other strengths of the icc. Namely, there was a general consensus amongst respondents that the civilization of the Courtroom equally a workplace was one in which employees from a host of countries were mostly respectful and cordial with i another. Respondents were mostly satisfied with their own and their co-workers' abilities to work together across cultural lines. ²¹ This contrasts with some of the proficient study's ²² findings that there were several accounts of bullying and harassment throughout the Court, though particularly in the otp. The expert report documented bullying and harassment equally frequently reflecting gender (rather than cultural) insensitivities, but it recommends increasing both gender and geographical diversity in managerial positions, nonetheless, as ane of several measures to promote a more cooperative civilisation.

Likewise, 2 respondents noted that the Court was, in their opinion, gaining more international recognition. They commented on recent current events in which the Court was globalising its investigations, and prompting domestic political discussions on the part of the Court in different countries, specially in powerful countries such as the United States. These respondents felt that the Court was becoming a more legitimate and recognised actor in the international arena, since the threat of the icc's presence in powerful countries was taken seriously. Equally one respondent observed,

When Bolton was criticizing the Court…no one was actually proverb, 'Oh, well this is great, actually, in the sense that the Court matters'. Similar, 10 years ago, [the US] would've been like, 'The icc? What?' Then, the fact that information technology's considered to exist a threat, in a way, is actually a positive sign. Because it shows that information technology's not a newspaper tiger. That…information technology does have credibility. Information technology does take legitimacy (R7, Defence).

For these respondents, the fact that countries were seriously considering how to respond to potential Court investigations symbolised the Court's growing power and presence on the international stage equally a consequential establishment with a greater-than-symbolic role in international relations and barbarism crimes.

3.3 Weaknesses

Respondents largely agreed on icc's biggest weaknesses. The most common theme of respondents' answers to the biggest weakness of the icc in conveying out its operations was its reliance on land cooperation. Table three lists the obstacles mentioned throughout interviews, how frequently they were mentioned in full general, and how oft by section (i.e., Defense force, Chamber, otp).

Viii out of nine respondents, when asked open-endedly what they thought was the biggest obstacle to the Courtroom, answered land cooperation. They noted its effect in determining both whether there would exist an investigation and what that investigation would be. These respondents indicated that, without state cooperation, which was frequently politically-motivated and flimsy at all-time, investigations could not go on. Vi of these respondents also explicitly stated concerns regarding how state cooperation could systematically bias investigations, with five describing their view that political opponents and armed services adversaries of the state were often forced to The Hague. This is considering, according to these respondents, governments would only be likely to volunteer information and investigations that were politically advantageous to the government. As one respondent stated:

There is non a lot of proprio motu activity on united states of america to aid the icc…Specially, specially when nosotros are investigating people in governments, obviously the cooperation from those governments is ofttimes minimal. And that, I think, is the biggest roadblock for the icc (R3, Office of the Prosecutor).

Another respondent explained this phenomenon and the conundrum it presented to the icc, stating,

It's really based on the fact that the icc doesn't have its own law force and isn't able to go out and arrest [whom] it wants. It'southward based on political will…And so, you know, it's a real double-edged sword for the icc. It needs its states to survive, but then it'south at the whim of states in terms of the cases that it prosecutes (R4, Defence).

This conundrum was a common theme in describing obstacles to effectiveness of the icc. It was but bolstered past the commonly-held sentiment that outside actors the icc relies upon, including the asp, did not have a good agreement of the Court, its responsibilities, and its limitations under the Rome Statute. This led both to poorer cooperation from funding states and, somewhat ironically, criticism against the icc that it was not doing enough, despite its lack of control over cooperation. The issue of the icc'south reliance is not just one noted in these interviews: scholars such as Clark, ²³ for example, take frequently discussed the international community's effect on how the Court is able to approach cases. They have described how the icc's reliance on states, which are political actors who cull to cooperate or not cooperate for political reasons, has made information technology itself subject to politicisation and has hindered its power to conduct its work. These ideas were echoed in interviews.

However, respondents also noted that the icc had several weaknesses that were under its control and roughshod outside of its limitations as an international torso. I fairly common theme beyond interviews – and one that, perhaps, non-practitioners would rarely consider ²⁴ – is the weakness of several hiring and firing administrative workings of the icc. Seven interviewees mentioned entrenched employees and/or politicised judge hiring processes equally inhibitive to Court processes. In add-on to practitioners who described politicised guess hiring processes equally inhibitive, one practitioner stated that judges who had already been hired might still non want to piece of work on certain cases that could bring them backlash from states and hurt the judge'southward future career or ability to travel. icc judges are elected by the asp, and must complete interviews before serving. ²⁵ Practitioners who brought this up contrasted it against their own experiences, such equally having to complete exams and evaluations earlier onboarding, and expressed business organisation that these practices atomic number 82 to a systematic onboarding of judges who are at the icc as a political motion for career advancement and/or who are less qualified than another, less politically pop guess might be. The issue of how judges are elected to the icc has also been a topic of discussion in academic spheres, where reports such every bit osji ²⁶ analyses the implications of this electoral process and how it might be improved. The recently published external report likewise records that some judges did not accept much 'experience, cognition, or interest in international criminal law', and notes that the practise of politicising votes for a approximate during the balloter procedure is entrenched. ²⁷ Interviews echoed these sentiments, expressing business organisation for the electoral process and recommending it exist amended to be more than merit-based.

Practitioners who brought up hiring processes also expressed business organization over firing processes (or lack thereof) at the icc. They explained that the icc, like many other governmental and intergovernmental bodies, makes information technology very difficult to let go of employees. Two respondents (one in otp, one in Chambers) specifically expressed concern that this leads to a system where senior employees are more likely to be entrenched and lose their passion for the field than senior employees in organisations without this context. This in turn leads to less effective work, which is consequential in an organization dealing with international atrocities. These two practitioners recommended limiting the corporeality of fourth dimension people could stay at the icc to reduce the likelihood that employees get entrenched, either by setting fourth dimension limits for the duration of a career at that place or making information technology easier to fire unproductive employees.

Another theme that came upwards in the interviews was the unfair disadvantage some practitioners saw Defence teams as having. Three of iv Defence personnel mentioned this explicitly, with the fourth stating that there was non necessarily a bias against Defence but structural inefficiencies. This theme, however, just came up once in non-Defence interviews, when a member of Chambers described it. In these interviews, respondents discussed Defence force teams' lack of abilities to get together bear witness in a way that was off-white, or to have the same resources bachelor to them in building their cases. Regarding show-gathering difficulties, the icc has a pre-trial and confirmation hearing component, in which the prosecution gathers prove on a case and accumulates witnesses earlier the trial has officially begun, and this is to be shared with Defence. According to Defense force personnel, prosecution is meant to gather evidence that would be useful to either team. However, in practice, Defence personnel argued that prosecution focuses on gathering evidence that helps build its example. One respondent spoke to this, proverb,

The lack of exculpatory disclosure that's given to Defence teams [is such that] you never get documents beingness disclosed that could show that [in that location'due south] some other group responsible [for the law-breaking], or that your client isn't fully responsible. [Prosecution is] just not in any manner constant with that Statute or obligation. They're just trying to become the best information for a conviction (R4, Defense force).

Another respondent echoed this, stating that, since during the confirmation of charges phase, prosecution does not bring live witnesses, Defence is unable to cross-examine witnesses or effectively answer to what they described as ex-parte motions, which leads to a bias.

In addition to a disadvantage inside the courtroom, Defense personnel brought up their comparative lack of resource. ²⁸ Defence expressed stiff concerns over its disability to guarantee witness protection in the way that prosecution could. As one respondent described, prosecution gathers witnesses during the pre-trial phase, and prosecution has its own internal section that decides what to do to protect witnesses. According to this respondent, Defence does non, and can only protect witnesses subsequently Chambers has approved Defence force'south list of witnesses, which does non happen until later, when the case has reached the trial stage. In some cases, this advancement takes years. Because of this structural status, a Defence squad hoping to prepare for trial must meet with witnesses before the listing is compiled and protective measures tin can be put in place for that witness, whereas prosecutorial witnesses, used for pre-trial stage, take protective measures in place. ²⁹ This was combined with a context where Defense force personnel could not admission witnesses very well to brainstorm with, since their witnesses were often on the 'losing' side of a conflict, and had fled into other, harder-to-access territories. As well this, Defence force personnel also referred to other lack of resources, including the need to run back and along between the courtroom and their building, which, at one bespeak, was carve up from the master edifice where otp and the courtrooms were housed, if they needed to carry out authoritative tasks such every bit printing papers equally trials develop in existent-fourth dimension. Combining these disadvantages with the cultural value on fighting impunity (i respondent idea the valued goal of 'fighting impunity' as opposed to 'conducting fair trials'), Defense force personnel often described feeling systematically disadvantaged. They saw this as a weakness to the icc, and i Defense respondent stated that this had a negative impact on day-to-day morale.

This systematic disadvantage is not unheard of in the existing literature: McDermott ³⁰ observes that Defense is often at a disadvantage, in part since states are often less willing to cooperate. Even so, the disadvantage described in the interviews is notable, given that they often reference inequality of resources that has occurred, in function, by the structure of the Court. This is the kind of disadvantage that, in international law, courts merits to be most concerned with. ³¹

3.four Practitioner Recommendations

Respondents were also asked about their ideas on how to amend the Court. When asked, if they could alter anything, what they would change about the icc to arrive better, respondents provided a range of answers. They differed in their assertions of where they would get-go, and what the best path forward for the icc was. This variability could be due in part to the fact that they were asked this question in an open-ended way, rather than asked to pick from a list of possible paths forwards. For example, two respondents discussed making more consistent how judges appraise testify; two others suggested making it easier to let become of unproductive employees. Despite these discrepancies in what respondents chose to highlight, there were several consistencies.

The most mutual recommendation for improvement, coming up in six of nine interviews, was amending the Rome Statute in some way (though, specific amendments differed). 5 respondents mentioned that, despite clear logistical difficulties, it would have been preferable to accept universal global-wide jurisdiction and/or make all states a signatory to the icc. The related logic was that, if an international body were to generally sanction Court investigations in whatsoever state, the Court would be less at the whim of private land cooperation. These respondents often mentioned that having international bankroll and/or universal jurisdiction would permit for less biased trials and investigations that are interrupted at lower rates. Six of 9 respondents compared the icc to former International Criminal Tribunals (ict southward), suggesting that the icc should model itself subsequently these tribunals in several ways. Four of these respondents lauded the more mandated cooperation (notably, the most common recommendation for improvement for the icc in these interviews) nether Chapter vii of the UN Charter, which immune for UN intervention for not-cooperation. Respondents besides mentioned the ict s as having more support from outside countries and international bodies, such as nato and the European Union, which gave the tribunals more authority to carry out investigations regardless of involved parties' political preferences. They discussed the ict s every bit non being at the political will of cooperating countries in their investigations. They frequently cited the icty as a good model for this and felt that, since nato and the United Nations were supportive facilitators of investigations and at that place were international repercussions for not-cooperation, the icty could part relatively well despite dissatisfaction or opposition by some of the governments in the Former Yugoslavia.

Equally another amendment to the Rome Statute, three respondents (all members of Defence) also advocated for a removal of the pre-trial phase, noting its ability to terminal for well over a twelvemonth just to decide which charges an accused would face, something that 2 respondents from Defense mentioned otp should do in advance of arrest. Several respondents also advocated for a separation of reparations and convictions: tying the two, they noted, pressured judges to captive, and could harm victims, who notwithstanding needed access to rehabilitative or restorative services. These responses suggest that, fifty-fifty within the icc, personnel find the Rome Statute in need of repair.

A common suggestion for comeback was as well increasing the capacity-building functions of the Courtroom. Several respondents mentioned that, if they were President of the icc, they would focus on the icc's complementary role and empower domestic courts. I respondent suggested that, rather than providing the assist itself, the icc should support domestic courts and/or centres in providing aid to victims. The respondent'southward idea was that domestic institutions, such as courts or rehabilitation/counselling centres, would be better equipped to provide help to victims, since these institutions would better sympathise what the needs of the victims were (e.g., fiscal, physical, mental, etc.). Likewise, a given victim is currently only provided reparations by the icc if the defendant is convicted and the victim can establish that they are the victim of the specific bedevilled person'southward crimes. Reparations are not allotted dependent upon whether the victim was simply a victim of any given criminal offence that occurred during the conflict. Co-ordinate to the respondent, yet, if the icc'south victim aid programs shifted to a more supportive role, information technology could provide resources to domestic institutions that could requite victims of disharmonize crimes aid, regardless of whether their assailants were convicted. Another respondent asserted that the icc should empower domestic courts with more legal resource, which could help them carry out trials in their own countries. Respondents who suggested that the icc would be more contributive to order if it leaned into its complementary function suggested that it invest in chapters-edifice processes such as these.

Another proposition promulgated by members of Defense force was to meliorate incorporate Defence force into the icc, unsurprising given their critique of Defence's status. Their suggestions for comeback often served as direct responses to their complaints: they mentioned making it easier to gather prove and protect witnesses, and having access to more resources. They wanted to see a by and large more incorporated Defence with more than capabilities.

Finally, three respondents (all members of Defence) also mentioned ridding the icc of its pre-trial stage, closer in accord with the ict s, which did not have one. ³² One of these respondents too mentioned the ict southward' regular status conferences, and suggested remodelling the icc's processes later on these. Another of these respondents described the ict s' protective mechanisms for Defense force's witnesses as more than favourable, since Defence counsel could put their witnesses into the witness protection unit immediately at the ict s, whereas they accept to look until afterward the pre-trial stage to do so at the icc. ³³ More often than not, practitioners seemed to favour the ict due south and how they were carried out, bringing them upward as models for the icc to await to.

3.5 Evaluating the icc

Practitioners, despite their dissimilar assessments of icc goals, featured several themes in the strengths, weaknesses, and recommendations for improvement of the icc. These discussions bring up the natural question of how the international community should evaluate icc's effectiveness in the hereafter. On this front, practitioners had one clear point of consensus: convictions could not be the sole, or even primary, measure to evaluate the icc. Even when respondents agreed that convictions could be one of many metrics to evaluate the Court, they argued that factors such as victims' satisfaction, fairness of trials, and long-term effects should be used every bit other metrics to evaluate the Court, as well. This is illustrated by one respondent, who asserted,

The icc should not exist about conviction. By saying this, you know, information technology'due south as if we're saying, 'Once we arrest, the person is presumed less innocent and it should lead to a conviction'? I hateful, that's not how a judicial organisation is built…[The icc] shouldn't await at its results in terms of confidence or amortization…[but] whether there is reconciliation in the country…[The icc] should inquire the people in the situation state…'Practice you lot feel ameliorate?'…Information technology's not about how many convictions we will go…The icc should not be about that. Should be able to bear more constructive trials. And more than publicly. Because that's also what it is most. It's about bringing it back to the people (R5, Defence).

Another respondent felt similarly, commenting,

Correct, so what is an effective icc? That's a good question, because that [raises] the question of what are the performance indicators yous would use to assess what a skillful icc would wait similar…If you look at the strategic plans of the icc and the Role of the Prosecutor, yous would see that the performance indicators are mostly metrics related to internal function… 'How chop-chop did you get to this point or that betoken?' 'How many convictions did you get?' 'How many arrests did you lot get?' That's certainly 1 manner of measuring the icc. It's not a bad style of measuring the icc, only I think in the long-term, if y'all want to measure the icc, you take to start studying the deterrent impact, as well. So, a 'good' icc – or a performance, effective icc – would be an entity that is carrying out…constructive, efficient, and fair investigations and prosecutions. That also, at least in the long-term, tin can take some measurable impact on the environments in which it operates (R3, Office of the Prosecutor).

Evaluating the Court in means as well number of convictions was a sentiment largely held across Defence, Chambers, and otp, as symbolised past another respondent:

I am enlightened of all the criticisms most number of convictions, the length of the trials – of course, there are many things to exist improved. Only I think that's quite a express view of what the Courtroom is doing, and I think ane should have a more comprehensive view of some of the things the Court triggers. I think for example – i example is what'south happening in Colombia. I think that's a proficient instance…I think [the Court] raises awareness. In my view, what the Courtroom is doing should be considered in all its spectrum, and not just being related to number of convictions, for instance. (R2, Chambers)

Outside of this, there was departure. Perhaps because of their different conceptualisations of the goals, likewise as the considerable variability betwixt cases at the icc, at that place was also very little consensus on how effective the Courtroom is today. Two respondents (one in Defence, 1 in Chambers) idea the Court was, overall, effective given the limitations and time information technology takes for an establishment to better, four others (two in Defence, 1 in otp, i in Chambers) thought it was ineffective, and three others nonetheless (one in Chambers, ane in otp, one in Defence) stated that it was unclear and probably too early to tell. On the subject of how to monitor this effectiveness, there was some difference.

More often than not, respondents agreed that the icc'southward number of convictions was an inappropriate measure of the Court's effectiveness. Respondents displayed consensus on the deeper role of the icc, for example, in norm-building, in encouraging domestic processes to take on cases, and in providing independent and impartial trials where domestic courts could or would not. One respondent declared that, if the icc were truly effective, it would not have whatever cases at all, echoing the thoughts of Luis Moreno-Ocampo, the icc's first prosecutor. Others asserted that, even in the case of a non-conviction, if a trial was off-white, the icc had done an effective chore.

While respondents frequently agreed that using 1 measure (most often, convictions) would not offer a true account of the Court's effectiveness, at that place was difference on what to include. Some respondents (one in otp, i in Defence, and i in Chambers) opted to evaluate the Court in office based on the presence of reconciliation and stability in the country, and whether people involved in the state of affairs described themselves as having felt ameliorate for the intervention. According to one respondent, the presence of fair trials themselves could help further reconciliation. Two respondents in Defence mentioned the evaluation of the trials as off-white, contained, and impartial as the near important metric, much as in the same vein as a standard domestic courtroom.

Others still idea that evaluating the effect of other less tangible factors was important: 1 respondent in Chambers, for example, thought the icc'due south effect in international norm-building and pressuring parties to come to an agreement, such as in the case of Colombia, was an often-neglected aspect of its effectiveness as an international courtroom. The interviews suggested that practitioners largely wanted a nuanced, holistic evaluation of the icc and its function in the international order. However, in that location was non consensus on whether the main evaluation metric should be the presence of off-white trials, the encouragement of domestic response to atrocities, the speediness or confidence records of trials, or some combination of all of these.

3.6 Reasons to Hope for the Future

Despite the lack of consensus on whether the Court was effective and how to evaluate its effectiveness in the time to come, respondents often had hope for its continued improvement. They remembered the oft-cited greatest strength of the Courtroom – its very existence – and drew inspiration from the fact that it was permanent and had the potential to exist improved upon. They recognised the Court'south youth and the possibility of it learning from and improving upon its by. One respondent offered a perspective that was representative of these ideas, stating,

Well, information technology's a permanent courtroom, so I think it's never too late [to improve]. And of course it's going to be slightly difficult, because probably your best time to accept done this would've been at the beginning. But, you lot know, it might take time, but it'due south a permanent court. I think information technology's just a matter of chipping away, chipping away. And eventually it will happen (R7, Defence).

Afterward in the interview, the respondent again made an ascertainment looking to the potential of the icc and its comeback in the future, over again representing the thoughts of v other respondents: 'But I call up the mere fact yous take a court – I remember you can't underestimate that. I remember as a notion itself, it's terribly powerful, and I think people underestimate the bear upon of there being an icc' (R7, Defence).

4 Conclusions

Respondents' perspectives contained several converging and diverging themes on the effectiveness of the icc. Their assessments of the icc'southward primary goals were fairly diverse: ending impunity was a articulate theme, but a somewhat contentious 1 for those who did not agree on its prioritisation as such. As well, a host of other principal goals were mentioned: providing justice for victims, chapters-building and supplementing domestic processes, conducting off-white and impartial trials, and, in one case, promoting stability in the situation country.

Nigh respondents agreed on the icc'south greatest strength and weakness. These were its very existence (both as a foundational tool for improving international police force and a symbolic tool to encourage norm-building and pressure domestic change) and its reliance on state cooperation, respectively. While reliance on state cooperation was the nigh-cited biggest weakness, though, respondents also mentioned several internal issues. These include hiring and firing processes (i.due east., the process of electing judges, the difficulty in letting get of unproductive employees) and a lack of transparency in trials (eastward.grand., during the pre-trial phase or in judgments). Defence respondents often likewise described structural disadvantages against Defense every bit a weakness.

When discussing how to measure the effectiveness of the Court, respondents agreed that convictions could non be the sole measure out of icc effectiveness; though, in that location were divergent ideas on how constructive it was and how to measure that effectiveness. When asked how they would evaluate the icc, respondents stated that evaluations should include an affiliation of indicators, with some naming a few examples. There was a articulate demand to define the brusk- and long-terms goals of the icc, too as a means of evaluating its functioning, since the goals and means of evaluation make up one's mind what the icc should prioritise.

Regarding recommendations for improvement, there was a singled-out theme advocating for changing the Rome Statute on several fronts (e.g., disconnecting reparations from convictions, enforcing universal jurisdiction) and improving capacity-building efforts. Respondents from Defence by and large also wanted to see a removal or amendment of the pre-trial phase and improved resources for Defence into the Courtroom.

Some of these themes have been observed in the literature. McDermott, ³⁴ for instance, has detailed disadvantages against Defence counsel; country cooperation is a major issue often cited in the international police force literature; ³⁵ and the icc's potential complementarity effect, ³⁶ for example, take all been mentioned in the literature. Some authors ³⁷ have also discussed issues similar the judges' electoral process and the potential implications information technology has on the Court. The expert written report ³⁸ has covered several of these issues, exploring issues related to both man resource and Court proceedings.

However, respondents likewise provided unique insight into weaknesses of the internal performance of the Court, for example, in its potential to maintain entrenched employees. They also provided insight into which strengths and weaknesses manifested on a day-to-day basis and how. Finally, respondents were able to offer several insider perspectives for improving the Court, for instance, through their first-hand comparisons of its functioning and the functioning of other international tribunals, such as the icty and ictr. Their perspectives both mirror some sentiments in the literature and provide new perspectives for understanding the Court.

The practitioner perspectives documented and analysed in this study contribute to scholarly and practitioners' understanding of the Court. Respondents largely painted a picture of a courtroom that is still learning and features several weaknesses; though, powerful by merit of its very existence and with the potential to improve. Practically-speaking, they mentioned several clear implications for moving forward. Respondents' insights suggest that considering what amendments to the Rome Statute would wait like and exploring means to mandate land cooperation, for example, could improve the Court'south effectiveness. Academically, these perspectives provide insight into the strengths and limits of an international court, equally seen through the eyes of its employees, and provoke questions virtually what its role should be on the international stage.

This study faces some limitations that merit discussion. Start, in that location might exist sample bias present in the report. Equally noted in the Methodology department, respondents were gathered through snowballing after initiating one of the author's networks. This means that we have explored a network of people in the icc, who may or may not have opinions that reflect icc practitioners more by and large. Second, the sample size of this report is considerably minor. This again limits generalisability: it is unclear whether the themes documented in this study are cogitating of nigh icc practitioners' perspectives. Results should therefore exist considered exploratory. Despite these limitations, the written report provides a unique perspective into the day-to-day workings of the Courtroom. Information technology as well is one of the start documentation of practitioners' insights into the effectiveness of the icc. This is an important perspective to include in discourse on the icc, given practitioners' daily interactions with the Courtroom and its operations.

It is important to accept into account the perspectives of those who work at the icc. Court personnel are instrumental in its mean solar day-to-mean solar day operation; thus, the way they see and evaluate the system is, to an extent, determinative of how the system operates. The fact that personnel's perspectives diverge on one of the about fundamental questions about the Court ('What is its principal goal?') raises questions about the Court'south efficacy, how it runs on an everyday basis, and how to meliorate upon information technology. Analysing the private perspectives of practitioners, their divergences, and their convergences is important non only for conceptualising the Court's goals and missions, simply too for developing more workable solutions to many of the challenges the Courtroom faces. An important avenue for future inquiry is to systematically examine staff's perceptions amid larger groups of icc practitioners. This would let researchers to come across whether our exploratory findings agree against a larger and more representative sample size. Nosotros believe that our study has provided an of import beginning footstep to incorporating these crucial perspectives in scholarly and practitioners' discussions on the icc, its functioning, challenges, and possibilities.

Appendix A Interview Topics

1. 1. DEMOGRAPHICS
   1. a. Respondent's organ
   2. b. Duration of respondent's employment
   3. c. Job responsibilities
2. 2. MEANING OF 'EFFECTIVE'
   1. a. Primary goals of the icc? (e.g., justice, peace, complementarianism)
   2. b. Principal duties of the icc? Of respondent's office?
   3. c. What does an effective icc await like?
3. three. HOW EFFECTIVE CURRENTLY
   1. a. How effective is respondent/respondent's office/the icc at completing their duties?
   2. b. Successful instance of the icc/respondent'south office/respondent'south working finer?
   3. c. Example where the icc/respondent's function/respondent's might have needed comeback? What does respondent call up went incorrect?
4. 4. HELP OR HINDER EFFECTIVENESS
   1. a. Biggest/nigh notable asset?
   2. b. Biggest/most notable obstruction?
   3. c. In respondent'due south opinion, how does ___ affect the icc/how well does the icc deal with __? Does respondent call up it helps or hinders the icc/respondent's piece of work, or doesn't affect it?
      1. I. POLITICAL
         1. 1. External political context
         2. 2. Country back up
         3. 3. Land cooperation (e.g., when icc gets a case/when it tin can investigate)
         4. 4. Investigating non-state and/or country actors
         5. 5. Internal procedures
      2. 2. HOW Core Court ACTIVITIES ARE Existence CONDUCTED
         1. 1. INVESTIGATIONS
            1. a. Prove gathering (e.g., cross-cultural nature of piece of work, witness intimidation/tampering, protecting witnesses)
            2. b. Witness interactions
            3. c. Service distribution (fiscal, concrete, and psychological)
         2. 2. TRIALS
            1. a. Off-white trial
            2. b. Evidence assessment
            3. c. Sentencing
            4. d. Cross-cultural challenges
      3. III. TRANSITIONAL JUSTICE PROCESSES
         1. 1. Mail service-conflict tensions – does icc touch these?
5. 5. SUGGESTIONS FOR EFFECTIVENESS
   1. a. What does respondent think should happen to make the icc more constructive?

altmanuped1943.blogspot.com

Source: https://brill.com/view/journals/icla/21/1/article-p126_126.xml?language=en

Share this post