Part I: What can be done about the length of proceedings at the ICC?

Editor’s note: this is Part I of a two-part post.

“Judgement does not come suddenly; the proceedings gradually merge into the judgement.”

Franz Kafka, The Trial

Jean-Pierre Bemba made his first appearance before the Pre-Trial Chamber in July 2008. His trial began in November 2010 and lasted four years. Two more years passed before the Trial Chamber found him guilty in March 2016. Another two years passed before the Appeals Chamber finally acquitted him in June 2018. He had been in custody for almost a decade. Other trials at the ICC have lasted nearly as long.

Long proceedings are not unique to the ICC. The most striking case must be the Nyiramasuhuko et al trial at the ICTR. There were six accused, arrested between 1995 and 1998. The trial began in June 2001. All six were convicted ten years later, in June 2011. Their appeals were not resolved until December 2015, by which time one of them had been in detention, awaiting the final resolution of proceedings, for twenty years.

The problem of lengthy criminal proceedings plagues domestic judicial systems, too. Indeed, a significant number of applications before the European Court of Human Rights (“ECtHR”) concern alleged violation of the right to a fair trial within a reasonable time under article 6 of the European Convention of Human Rights (“ECHR”). The extent of the problem in certain countries has prompted the ECtHR to resort to the so-called ‘pilot judgment’ procedure.

What is a reasonable length for criminal proceedings?

The requirement that criminal proceedings be conducted in a fair and expeditious manner is found in articles 9(3) and 14(3)(c) of the International Covenant on Civil and Political Rights (“ICCPR”), article 6(1) of the ECHR, and other human rights instruments. Similarly, articles 64(2) and 67(1)(c) of the Rome Statute require that trials be conducted in a “fair and expeditious manner” and “without undue delay”, while article 21(3) requires that the Statute’s provisions be interpreted in light of international human rights standards. These provisions must be understood as requiring trials at the ICC to take place within a reasonable time.

There is no ICC jurisprudence on what constitutes an expeditious trial or one that occurs without undue delay. Apart from Bemba’s request in March 2019, no accused person at the ICC has so far lodged a complaint about the length of proceedings, or requested compensation, a possibility envisaged in article 85 of the Rome Statute and rule 173 of the Rules of Procedure and Evidence.

Perhaps the most helpful jurisprudence emanates from the ECtHR, in particular the cases Neumeister v. Austria and König v. Germany. The ECtHR uses four criteria to determine whether the length of criminal proceedings is reasonable: the complexity of the case, the applicant’s conduct, the conduct of the administrative and judicial authorities, and the interests of the applicant at stake.

The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) decided in the Šešelj case – which occupied thirteen years between arrest and first instance judgment – that no violation of the right to be tried without undue delay had taken place “when one takes into account the complexity of the case, the number of witnesses heard and exhibits tendered before the Chamber, the conduct of the parties and the serious nature of the charges.” These considerations broadly follow the ECtHR test, and it is likely that the ICC would adopt a similar test.

Some of the reasons why ICC trials take so long

Frequently, ICC investigations and trials concern events in countries with an ongoing armed conflict, and a hostile political environment. To date, witnesses and victims in all ICC cases have required some form of protective measures. In practice, this creates additional workload and requires additional time. In the Al Hassan case, difficulties resulting from a challenging security situation in Mali prompted the postponement of the confirmation hearing from September 2018 to July 2019.

Another reason why proceedings at the ICC go slowly is that they are often akin to ‘cold cases’ on a global scale. It is not unusual that years will go by between the issuance of an arrest warrant and its execution. Sometimes this is because the suspects are fugitives. But even when their whereabouts are known, cooperation failures over the execution of arrest warrants may mean that victims and their families have to wait for years or even decades while suspects remain at large, because the Rome Statute does not permit trials in absentia.

Delayed arrests can have a significant ‘knock-on’ effect. The Ongwen case is a good example. The arrest warrants for Dominic Ongwen and four other Ugandan suspects were issued in July 2005. Significant investigation ceased in 2007, and it seemed for many years that no suspects in the Uganda situation would be brought to justice. Ongwen was eventually arrested in January 2015. To ensure that his trial encompassed more than events taking place in one place on a single day, which had been the basis for his original arrest warrant, the prosecution were granted a period of a year between his arrest and confirmation hearing to conduct further investigations into evidence which had become available since 2007.

The Rome Statute includes a robust and extensive system of protections of the accused’s procedural rights, which are outlined in its article 67. In order to ensure that their advocates are able properly to investigate their own case and to test the prosecution case, accused persons often request postponements or extensions of time limits in the proceedings.

A significant source of delay between the first appearance of an accused and the commencement of their trial is the time taken to effect disclosure of relevant documentary materials in the possession of the prosecution to the defence team. Typically, judges require this process to be completed three months before the commencement of trial. In most cases the prosecution has thousands of documents in its possession. Each has to be reviewed for potential relevance and then often redacted to obscure sensitive information. This process can take many months. In the Ntaganda case, the volume of disclosure received immediately before the three-month deadline was so great that the Trial Chamber felt compelled to grant a three-month delay to the start of the trial at the defence’s request.

Once a case begins at the ICC, there will be tens of thousands of pages of documents. All those that form a significant part of the case will have to be translated into a language spoken by the accused. Courtroom proceedings, which have to proceed slowly enough to permit interpretation and transcription, last for hundreds of hours. The time needed for the translation, transcription, and interpretation of this material is significant. In the Ntaganda trial, the defence requested and were granted additional time for filing their closing submissions, among other reasons due to delays in receiving the translation of the prosecution’s 361-page closing brief.

ICC staff and elected officials come from all regions of the world, bringing with them their diverse cultures and legal traditions. This undoubtedly enriches the ICC’s practice. Given that the Rome Statute and the Rules do not regulate a significant number of procedural and substantive issues, these lacunae are left for practitioners and judges to interpret. What is allowed in one system can be unheard of or prohibited in another. Examples include the practice of witness preparation or proofing before testimony, evidence admissibility, and plea bargaining. If one were to compare the three active trials running in 2018, witness preparation was allowed in the Ntaganda case, but forbidden in the Ongwen, and Gbagbo and Blé Goudé cases. Indeed, a number of majority rulings in the Gbagbo and Blé Goudé case, with strong dissenting opinions, appear to result from the well-rehearsed differences between the common law and civil law systems. Such disagreements cost time to attempt to arrive at a common position, and more time to write majority decisions and dissenting opinions where compromise cannot be achieved.

But there are two even more significant causes of delay.

First, allowing long periods of interstitial time to elapse between the various steps in the proceedings, such as first appearance, confirmation of charges decision, start of trial, trial judgment, and appeal judgment. Using the Bemba case as an example, 192 days elapsed between Jean-Pierre Bemba’s first appearance on 4 July 2008 and the confirmation of charges hearing, which began on 12 January 2009. Once charges were eventually confirmed on 15 June 2009, a further 525 days passed before the start of the trial on 22 November 2010. Most alarmingly, 659 days elapsed between Bemba’s conviction on 21 March 2016 and the hearing of his appeal on 9 January 2018. During this period of nearly two years, there were around one hundred interlocutory filings by the parties and rulings by the Appeals Chamber. Bemba had filed his appeal brief in September 2016 and the prosecution responded in November 2016, but it was not until November 2017 that the Appeals Chamber scheduled the appeal hearing.

Second, holding courtroom proceedings on a small proportion of the days seemingly available. The trial proceedings in the Bemba case also offer a good illustration of this lack of intensity. From opening to closing submissions by the parties and participants, the trial spanned just under four years. During that time, the court only sat on 330 days. That is about a third of the working days available. In the earlier Lubanga trial, allowing for weekends and public holidays, there were about 580 days, on which hearings could have taken place, of which only 204 days (about a third) were used. The Katanga trial was more efficient; the equivalent figures are 490 and 265 days (over half). The figures from the more recent Ntaganda case (just over a quarter) suggest that the problem persists.

On most days in 2018 all three courtrooms in the new ICC building were empty, despite the fact that three cases were in trial for most of that year. It is only fair to mention that the ICC has faced financial strictures which mean that simultaneous proceedings in all three courtrooms were not feasible, but it must be questionable whether prolonging trials to make ends meet is an efficient, or proper, course of action.

Author’s note: The views expressed in this article are those of the authors alone.