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

Editor’s note: This is Part II of a two-part post. See Part I here.

Recent improvements

In recent years, the Assembly of States Parties, Presidency, Chambers, Registry, and Office of Prosecutor have all made efforts to make the ICC proceedings more efficient.

Back in 2010, the Assembly of States Parties established the Study Group on Governance to expedite the proceedings, and enhance the ICC’s efficiency and effectiveness. In 2012, the ICC created the Working Group on Lessons Learnt to take stock of existing practices and consider measures for improvement. These two groups have, together, galvanised other efforts to tackle the issue. Such efforts include proposing amendments to the Rules of Procedure and Evidence, in particular rules 132 bis and 68, later adopted by the Assembly of States Parties.

By a resolution in December 2014, the Assembly of States Parties requested the development of qualitative and quantitative performance indicators for the Court. The first report on performance indicators was published in November 2015 with the stated goal that ICC proceedings should be “expeditious, fair and transparent at every stage”. It identified ten non-exhaustive factors as likely to affect the length of proceedings. It suggested that these factors could be used to provide benchmark estimates for the likely duration of cases and that the degree of variance from such benchmarks would be the eventual performance indicator. The 2015 report identified three other areas of concern: the interstitial periods between different stages of the proceedings, judicial reaction time in providing decisions on filings, and the fullest possible use of the courtrooms.

The November 2016 report on performance indicators proposed seven key phases in litigation at the ICC and identified 51 sample indicators which might impact on the expeditiousness and fairness of proceedings. The November 2017 report refined these, but ideas of benchmarks and measuring degrees of variance from these appear to have fallen by the wayside. Nor were the ideas of measuring the speed of judicial decision-making or the efficiency of courtroom use taken any further. The reports include detailed statistical data on cases before the ICC, but not in a way which enables useful conclusions to be drawn. For example, the number of days on which trial proceedings took place is contrasted not with the number of days on which courtrooms were available, but with the number of days on which sittings were scheduled to be heard. Although the 2017 report spoke confidently of “next year’s progress report” none appeared in 2018 and none has been published since. There has to be some question whether the development of the “qualitative and quantitative performance indicators” required by the Assembly of States Parties has been achieved in respect of the stated goal that ICC proceedings should be expeditious.

In May 2017, with the express aim of contributing “to the overall effectiveness and efficiency” of ICC proceedings, the judges adopted an updated version of the Chambers Practice Manual. It consolidated best judicial practices on pre-trial and trial issues but did not tackle the interstitial delays and lack of intensity which have been highlighted above. Certain practices endorsed in the Manual have been successfully tested both before and after its first adoption in 2015. They resulted in streamlined confirmation proceedings in several cases in 2014-2019, namely Gbagbo (June 2014), Ntaganda (June 2014), Blé Goudé (December 2014), Al Mahdi (March 2016), Ongwen (March 2016), Al Hassan (September 2019), and Yekatom and Ngaïssona (ongoing).

ICC President Silvia Fernández de Gurmendi (2015-2018) recognised that the proper administration of justice is dependent on the efficient conduct of judicial work. Her End of Mandate Report in March 2018 spoke of prioritising efficiency “with particular emphasis on expediting and improving [the ICC’s] proceedings” and instanced the promotion of judicial retreats, amendments to the legal framework, reforms in legal support structure, enhanced cooperation with internal and external actors, the development of performance indicators, and the ICC Case Law Database as initiatives she had taken or encouraged.

Changes to the legal framework aimed at streamlining the proceedings have been achieved through amendments to the Regulations of the Court. This is a relatively straightforward process, giving control to the ICC judges within the existing legal framework of the Rome Statute and the Rules of Procedure and Evidence. Taking advantage of this flexible tool, the judges have made four of the six amendments to the Regulations of the Court in 2016-2018.

Most recently, the 2019-2021 Strategic Plans of the Court and the Office of the Prosecutor in particular (plus to a lesser extent, the Registry) all discuss measures to be taken for increasing the speed, efficiency and effectiveness of court proceedings.

Further steps to speed the trials

Arguably, the ICC’s design does not allow for speedier proceedings without the implementation of fundamental reforms, involving changes to the Rome Statute and the Rules of Procedure and Evidence.

One such reform, radical but frequently mooted, could be the elimination of contested confirmation proceedings, and a ‘return’ to the model of indictment proceedings at the ICTY and ICTR. To quote Judge Fernández de Gurmendi, “pre-trial proceedings [at the ICC] have been lengthy and cumbersome and not always helpful to the overall criminal process” (‘Enhancing the Court’s Efficiency’, Journal of International Criminal Justice 16 (2018)).

The Bemba case illustrates the possible good sense of such a reform. In 2018, the  Appeals Chamber determined that the charges, which had been heard by the Trial Chamber and adjudicated by it after a trial lasting over four years, were defective, notwithstanding that the Pre-Trial Chamber had confirmed them to be compliant with the requirements of the Rome Statute nine years earlier. It appears that, in that case at least, the confirmation procedure did not guarantee the protection to the accused which its proponents argued for at the time of the Rome Statute’s adoption in 1998.

But less radical measures may also bring fruitful results. The ICC could examine prosaic measures which would speed up the trials, eliminate inefficiencies, reduce interstitial delays, and increase the proportion of sitting days during the currency of the trial.

One of the most straightforward changes would be for Trial Chambers to arrive at verdicts and pass sentence in a single judgment at the conclusion of the trial. This became the settled practice of the ICTY and ICTR. While the two decisions are the subject of separate articles in the Rome Statute – article 74 for the verdict and article 76 for the sentence – there is no statutory requirement that they be delivered on separate occasions. It would be open to the judges to require the parties and participants to ensure that the evidence they called at trial was sufficient to cover any matters which might arise if guilty verdicts were reached and sentence had to be considered by the Trial Chamber. Likewise, closing submissions could include all matters relevant to the possible sentence, or a separate pre-verdict hearing relevant to potential sentencing matters alone could be held, in accordance with article 76(2). It must be considered carefully, however, because it could deprive the parties and participants of a fully-informed discussion on appropriate sentence.

Interlocutory motions present another opportunity for streamlining. In recent cases, less controversial applications and decisions have been made by email. But a more radical step would be to explore the possibility of determining interlocutory issues at oral hearings. A noteworthy example of how such hearings might save time and effort comes from the preparations for the Bemba appeal, although the possible lesson to be learned applies to all stages of proceedings. In September 2016, the defence made an application to rely upon additional evidence at the hearing of the appeal. In the following five months, the prosecution submitted six filings on this issue alone. The defence themselves made a further four filings, and the legal representative of the victims one. The Appeals Chamber issued three interlocutory rulings, none of which resolved the issue at hand. All of the issues raised by the parties and participants could have been heard and determined at a single oral hearing scheduled by the Appeals Chamber shortly after the matter was first raised.

With regard to early trial management, Judge Tarfusser’s words in his Separate Opinion of July 2019 in the Gbagbo case provide considerable food for thought. He suggests that the pre-trial phase “is only worth holding if the Chamber takes a proactive role from the start, including by way of a meaningful exercise aimed at the identification of issues critically relevant to the determination of the charges. Instructing the parties to prioritise and bring forward evidence relating to such issues first should have constituted the core of the Chamber’s concern.” The Judge was only articulating what are the guiding principles in many jurisdictions with regard to judicial management of complex cases. Within trial proceedings, more hands-on management by presiding judges could significantly shorten the giving of evidence. Judges could query the relevance of certain lines of questioning at an early stage and refuse to hear witnesses unlikely to cast light on the allegations made by the prosecution, or at least require that their statements be submitted in writing under rule 68.

Trial Chambers might also take a rather stricter view of what constitutes “expertise” for the purpose of giving evidence. In any event, where competing experts are to be called, standard directions that experts must exchange their reports in advance, identify areas of disagreement, and then all testify solely on those disputed areas, in each other’s presence, in a trial session devoted to that topic alone, would be an efficient expedient. Trial Chambers might make even greater savings of time and other resources by requiring the parties to specify in advance of the trial what matters of expertise they wish to raise, and by nominating court-appointed experts to report and be questioned by the parties.

As noted above, the monitoring of the time taken for judicial decision-making was proposed in the ICC’s 2015 report on the development of performance indicators, but appears to have been dropped in 2016 and 2017 reports. This is an idea which should be further pursued. Recent decisions (notably in the Gbagbo case and the Afghanistan situation) have taken a very long time to emerge. As a first step, monthly data could be assembled and shared, initially only among the judges themselves, on a judge-by-judge basis, for each decision rendered, either individually or as part of a panel, so as to inform judges concerning areas where time may be saved and to enable appropriate targets to be considered. Thereafter, whether as a matter of practice or by means of binding regulations (no need for an amendment to the Statute or the Rules) deadlines could be set for judicial decisions, in particular decisions on opening an investigation under article 15, decisions on applications for a warrant of arrest or summons to appear under article 58, conviction or acquittal decisions under article 74, sentencing decisions under article 76, decisions concerning reparations orders under article 75, and final appeal decisions under article 81, but also for more routine decisions on interlocutory filings. Standard times, to be departed from where there was demonstrable good cause, could be established for the interstitial periods between the various stages of the proceedings. During the most recent judicial retreat, in October 2019, the ICC judges have adopted guidelines on the timeframe for issuance of key judicial decisions. The details of the adopted guidelines will be reflected in the upcoming revision of the Chambers Practice Manual.

Finally, the Court needs to sit more often and with shorter gaps between the different stages of the proceedings. Of course the complexity and duration of international proceedings is likely to be such that some periods for analysis, reflection and preparation will be necessary. The Katanga case illustrates that a long, complicated case can be held with the ICC using a majority of the sitting days available to it to hear evidence. Efforts must be made at least to emulate that performance. In some domestic systems, under significant ‘docket pressure’, far more efficient use of the facilities is required. In any given court centre in the UK, for example, the resident judge and court manager will know the average cost of every minute of court time, and the number of available minutes which are being gainfully used in each of the courtrooms. Where the performance dips significantly beyond what is deemed to be a reasonable level, explanations will be sought from the court officials and judges concerned.

Conclusions

As internal and external perceptions of the ICC’s capabilities become more reasonable and grounded, twenty years after the adoption of the Rome Statute, it is important to learn from the cases heard so far. The length of those proceedings is just one aspect of the ICC’s work that requires careful attention.

The Assembly of States Parties and NGOs need to promote a realistic understanding of the ICC’s proceedings and the length of time that even efficient trials may take. Meanwhile, it is vital that the prosecution exercises self-discipline in selecting solid cases, bringing well-defined charges supported by robust witnesses and evidential materials, completing early comprehensive disclosure, engaging in regular inter partes consultations, and striving to ensure good relations with the judges and other parties to the litigation. All of these things make for speedy and well-ordered proceedings.

In turn, it would be desirable to consider and implement mechanisms to ensure the making of timely judicial decisions, shorter breaks between procedural stages, more efficient use of available sitting days, and more streamlined procedures for the reception of legal submissions and evidence.

Finally, it is imperative for the administration of the ICC to resuscitate the efforts made back in 2015 to develop a set of objective markers that will assist in conducting trials within a reasonable time in consultation with the judges, the prosecution, representatives of the victims and the defence.

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