2016 will be a busy year for the International Criminal Court (ICC), with three new trials scheduled to begin hearings in January, adding to an already active caseload. With this growth comes an increasing demand to better understand how the court works.
Last year at the 13th session of the ICC Assembly of States Parties (ASP), States Parties told the court to intensify its efforts to develop indicators, or benchmarks, to evaluate the court’s work and assess its performance. The Open Society Justice Initiative will be hosting a discussion on the issue at this year’s ASP.
In general terms, performance indicators measure the success of an organization. While the notion of performance indicators is relatively simple, the actual process of developing them may be rather complex. Measuring the performance of judicial institutions differs from measuring other organizations because the “end product” is the criminal justice process itself. Unlike other judicial institutions, the ICC is relatively new and, in contrast to national judicial institutions, it deals with few cases—albeit of much greater complexity. However, indicators can play a unique role in reflecting on the life of the institution and highlight the progress it makes towards achieving its overall goals.
The Justice Initiative has recommended that the ICC look into three categories of indicators: operational indicators, Rome Statute system indicators, and impact indicators.
Operational indicators measure the court’s operations, including information such as case processing times, victim engagement, effectiveness of outreach to affected communities, transparency, geographical distribution of potential defense and victims counsel, number of decisions issued by the court, etc. However, operational indicators are only one way to assess the court’s work. Only looking at the ICC’s operations would fall short of addressing the aims of the ICC as a whole and would neglect fundamental questions such as “Is justice seen to be done,” which are important to the court’s main stakeholders.
Rome Statute system indicators relate to the success of the Rome Statute as a global tool to fight impunity. These indicators may measure, for example, the extent to which states that have signed the Rome Statute are fulfilling their commitments under the ICC Statute in the fight against impunity for grave crimes. This would include measuring states’ assistance to the court through concrete acts of mandatory and voluntary cooperation and political support. It would also include assessing their will and capacity to conduct national investigations and prosecutions for the crimes under the jurisdiction of the ICC, in accordance with the principle of complementarity.
Impact indicators would assess the ICC’s perceived legitimacy and credibility. This includes the degree to which people affected by the crimes under investigation or prosecution by the court understand and engage with the process, as well as the court’s legacy. They would allow for measurement of the court’s effectiveness in global and meaningful terms, linking proceedings to their impact in affected communities and beyond.
In addition to measuring the ICC’s performance, indicators can provide a better understanding of the background in which the court operates and the challenges it faces. For example, a high number of witnesses in the witness protection program may indicate a particularly risky environment for ICC investigations.
Indicators can also point to problems and lay the ground for improving performance. For example, the court could develop indicators that identify why there are delays in proceedings or why hearings are rescheduled. These delays could be due to lack of sufficient cooperation, insufficient time provided to the defense for preparation, or an underestimation of the time necessary for completion of certain proceedings by the chamber. A comprehensive overview and understanding of these causes across cases may help solve these problems.
The existence of indicators could expedite efforts to adopt long-term solutions to the court’s challenges. Performance indicators would also provide a relevant accountability framework for determining the extent to which the court is living up to the promises enunciated in the Rome Statute. However, indicators should not be viewed as a tool to hold the court at ransom, but rather as one of the means to improve its performance.
The question of impact indicators is of particular importance to the Justice Initiative. The ICC does not operate in a vacuum. It is part of a broader accountability system and was created to provide justice for mass atrocities—particularly where those affected by the crimes have no other recourse. Often affected communities may have unrealistic expectations of what the court can achieve; but that is not a justification for the ICC to disregard their views. External stakeholders’ expectations and demands are a constant reminder of the court’s goals and ambitions. For example, through their work monitoring the performance of the ICC, civil society actors ensure that the court lives up to the expectations of the Rome Statute’s framers. Institutional self-assessment has limitations that may be addressed by involving external stakeholders in the process.
After over a decade in existence, the ICC is one of the leading global judicial institutions fighting against impunity. However, the court faces numerous challenges. The request for it to develop indicators provides a golden opportunity for the court to reflect on its performance over the years and propose a framework for how its performance should be assessed internally and externally in years to come. This exercise, albeit complex, is beneficial for the court and external stakeholders, including the states that invest resources in the court and civil society groups closely following and monitoring its work.
While the process of developing indicators must be driven by the court, the ICC should seek and integrate external input, including experts who have worked in developing indicators for domestic institutions as well as those such as civil society actors who can provide a critical perspective on the impact of the court’s activities.
Please join us to discuss these issues on Tuesday, November 24, 2015 from 13:00 – 15:00 at the session “Performance Indicators for the International Criminal Court,” co-hosted with the United Kingdom in the Oceania 2 Room at the ASP.
From my experience and from what was said to me by the COS; is that we (the SSS) will never say no. The trials will happen!