Posted: December 11th, 2014

The International Criminal CourtDelays in Adjudication – An Asset or Hindrance

The International Criminal CourtDelays in Adjudication – An Asset or Hindrance

CITATION: BlueBook

FOCUS OF THIS PAPER:
Goal of this paper is to advance the ICC
Delay After arrest: arrest through arraignment and adjudication
Will not focus on pre-trail investigation, fugitives

IS THE SLOWNESS IN ADJUDICATION…
Deliberate Delay
Cautious

IS THE DELAY A BENEFIT OR IS THERE LEGITIMACY FOR THE DELAY?
Benefit for whom?
Benefit for what?

DOES DELAY COMPROMISE JUSTICE?
The accused loss of liberty
Failure of the country to become strong, politically and economically
Failure for the victims to heal and move on in a productive life

COURTS CONFLICTED WITH ‘DOING IT RIGHT’:
Historical research takes time
However, research is part of the investigation as to whether to charge
this paper focus on the delay after formal charges and imprisonment

WHAT IS THE MOTIVATION OF THE COURT?
Fulfill goals of the Rome Statute
Mission to strengthen the court and its continuance

HEADING:
What are the benefits of delay – why delay?
Victims
Country has time to strengthen their economy/politically heal
Peace/security
Funding

Hindrances of delay?
Victims witnesses die off or memory loss
Risks reputation for effectiveness
What can be prevented?
Costs
Language barrier

RESOLUTIONS
a.    What can be done now
b.    Benefits (Important – professor stated this throughout
a.    For whom
b.    For what
c.    Set time-frame for adjudication
d.    Plea bargain
o    May plead guilty? If not why not
If no opportunity to plea, reasoning could be that the court is so young and want
o    to set precedence
o    Allowing a plea would create an established history
e.    Executive Powers checks and balances between Presidency and Prosecutor
•    Previous know power conflict between these departments division heads:  Luis Moreno Ocampo and the Office of the President
f.    Shorten prosecution time
g.    Term limits
h.    Ombudsman
i.    Maintain language in the two dominate languages and have outside party translate

IMPORTANT – updated facts have to be added to paper:
March 2014 – one other adjudication of guilty: Katanga – arraigned 2007,, convicted March 2014

EXCEPTIONS ART 17(2)
•    To determine unwillingness in a particular case in regard to due process
•    Proceedings used to shield the accused
•    Unjustified delay to bring person to justice
•    Proceedings (trial/investigation) not conducted independently (judges, prosecutors – threats) or impartially
o    Inconsistent with the intent to bring the person concerned to justice

PERSONAL INTERVIEW:
Wednesday, May 7, 2014
Luis Moreno Ocampo – former chief prosecutor of the ICC
Question posed: Why the length of time to adjudicate – is this a delay? If so why and how can it be resolved.
Yes there is a clear delay and it should be rectified
Believes rectification will happen over time as the court grows
Two few cases have resulted in a final

The International Criminal Court
Delays in Adjudication – An Asset or Hindrance

Katherine Caballero

Research Proposal
March 6, 2014

SKELETAL PROPOSAL

I:   Abstract

II:  The History and Goal of the International Criminal
1.    History and the Rome Statute
2.    Rome Statue Art. 67 and Art. 64.2
3.    The Goal of the ICC

III: Jurisdiction of the ICC

IV: Procedural Law – Charging and Prosecution
1.    Warrant
2.    Pre-Trial, Confirmation Hearing and Trial
3.    Conviction and Sentencing

V:  Those Charged: Indictments, Trials and Convictions

VI: The Benefits of Proceeding Slowly Through the Adjudication Process
1.    The Appearance of the Process is as Important as the Process Itself
2.    The Right to a Fair Trial – Evaluation of the Lubanga Case
3.    Establishing a Historical Record
4.    Victim Participation
5.    Administrative Process

VII: Problems Obstructing Expeditious Adjudication
1.    Ineffective Leadership within the OPT
2.    Internal Conflicts
3.    Judicial Concerns of the OTP and Lubanga Case
4.    Poor Choice of Defendants
5.    Usual Growing Pains of a New Institution

V: Solutions
1.    Critically Evaluate Past Tribunals
2.    Figureheads
3.    Critical Selection of Cases
4.    Correction and Removal of Division Heads

I: Abstract

The International Criminal Court (ICC) has been in working existence since July 1, 2002. After ten years and one billion dollars, the ICC concluded its first verdict in March 2012.   This adjudication track record and cost has faced international criticism. For the continued development of the ICC, my paper seeks to answer why the delay. Moreover, an individual’s liberty is at stake and years of incarnation without the benefit of conviction is not in line with the goal of an ‘expeditious’ trial under the Rome Statute.
The ICC deals with high profile crimes that have exceeded the normal parameters of behavior (crimes against humanity, war crimes and/or genocide). But a trial is not simply for the accused, for states and victims a like, the peace building process cannot conclude until those accused of these heinous crimes have been acquitted or convicted. A trial also offers a chance to develop a historical record and provide a voice to the often silenced victim. With delay also comes the risk of vital evidentiary records being lost and justice not served. It is for these reasons that delays in the trial process risk the opportunity to strengthen international criminal procedures, hinders the goal of the court and jeopardies the respect of the international community, thereby risking continued support.
While the ICC is still considered in its infancy stage within the international playing field, because it deals with the gravest crimes against a society, the ICC has a duty to operate efficiently and timely, and if there are delays, such issues must be public, transparent and clear. Resting on the laurels of an ‘infancy’ stage can only last for so long. In this research, I wish to answer the reasons for these delays.  If they are justified, then do these delays conform to the ‘expeditious’ clause in the Rome Statute? To do this it is necessary to address the development of the Court, its history, the adjudication process and how this process measures with the goal of the Court. In order to answer this question, I evaluate several circumstances that contribute to these potential delays and assess possible benefits for delaying the process. I then conclude with potential solutions.

II: The History and Goal of the International Criminal Court

1. History and the Rome Statute
Post WWII and the Cold War saw a stalemate in world wars, yet this did not prevent the atrocity of international crimes, and with it, the demand to bring criminals to justice. In 1998, the Rome Statue was established. This treaty called for a permanent international criminal court, which is located in The Hague, The Netherlands, with jurisdiction over crimes against humanity, war crimes and genocide. To date this treaty has been ratified by 122 State Parties.  The defendants are individuals, not states. The ICC entered into force on July 1, 2002, and took a year to seat the eighteen judges and elect its chief prosecutor, Luis Moreno-Campo.
2. Rome Statue: Art. 67 and Art. 64.2
Article 67(1)(c)  of the Rome Statute provides that the defendant “[s]hall be tried without undue delay,” and Article 64.2 states that the Court “[s]hall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses.” For these reasons, it is important to look at the delays and remedy any that have the ability to be remedied.
3. The Goal of the ICC
The ICC was established with two main goals in mind: 1) to punish the most serious of
crimes, for these crimes threaten the peace, security and well-being of the world,  and 2) to end impunity for the perpetrators of the most serious crimes and hold those perpetrators accountable.
The ICC cannot solve the problems of the world, and there is no guarantee that it has a deterrence effect. But the ICC may provide a partial solution by the mere fact that it exists, since situations involving ethnic conflict often begets further violence – one slaughter being the parent of the next. If leaders know there is an international process for adjudication, someone watching their actions so-to-speak, orders to subordinates may be cautiously re-considered.
III: Jurisdiction of the ICC
Known as the Principle of Complementarity, first and foremost jurisdiction lies with the State Party. There must be a direct nexus between the State Party and the actor:  1) if the act occurs in the territory of the State Party, or 2) if the State Party has jurisdiction over the person who committed the act; the later applies regardless of where the crime occurred.  If a State is unwilling or unable to prosecute, by way of civil war, regime change or bias, for example, then the ICC has the option to step-in, investigate and adjudicate.  But, the ICC is a court of last resort.
Should the ICC decide to prosecute, jurisdiction is effective surrounding incidents occurring on or after July 1, 2002, and in most circumstances, jurisdiction only applies to nations that have ratified the Rome Statute.  There are exceptions, however. First, a non-state party may agree to accept the Court’s jurisdiction over its territory surrounding a particular incident.  Second, without State Party ratification, the UN Security Council may refer a chase if deemed to be a threat to international peace and security.

IV: Procedural Law – Charging and Prosecuting
There is one of three ways to get a case to the ICC: 1) State party referral, 2) UN Security Council referral. or 3) the Office of the Prosecutor (OTP) initiates an investigation.

1. Warrant
The authority to issue an arrest warrant or summons an individual once reasonable grounds that the individual had committed a crime has been established occurs at the Pre-Trial stage. Since the ICC has no police authority, arrests depend upon state cooperation and enforcement.

2. Pre-Trial, Confirmation Hearing and Trial
At trial, all suspects are presumed innocent, must be present in open court and are entitled to an impartial panel of three judges (no juries).  There are three stages in the adjudication process: 1) first appearance – shortly after arrival to the ICC, where Pre-Trial and Confirmation Hearings are set, 2) the Confirmation Hearing – where evidence is weighed and charges are confirmed or dropped, and 3) trial (and the crux of the delay) – where before trial, procedural issues are addressed and hearings conducted, and once started, the trial itself is subject to interruptions.
3. Conviction and Sentencing
Upon conviction, the ICC has the power to impose up to a thirty year prison term; however, in extreme circumstance, a life sentence may be imposed.  In addition to incarnation, fines may be imposed and assets derived from the crime confiscated.  Appeals are permitted upon both a guilty verdict and an acquittal, thereby allowing the OTP a second chance to submit additional evidence that may change the determination of the judgment.

V: Those Charged: Indictments, Trials and Convictions
Although there are numerous ICC investigations throughout the world, the ICC has formally indicted thirty-six individuals, all from the African continent. Seventeen are currently in custody. But success should not be measured solely by a conviction rate; it must be measured by justice. Although there is one conviction at this is time (with a new ruling expected any day), there has been a great deal of judicial hearings. Yet the crux of the problem lies in the length between the initial appearance and the final resolution hearing.
Of the thirty-six warrants issues, ten are fugitives, two individuals died before they were apprehended, and one died while in custody but before trial. Charges were dismissed for six defendants, which averaged one year from arrest to dismissal. Eight defendants are currently awaiting their initial hearing, and four trials are in progress; here, the average detention time is four years. Two defendants are current awaiting their Confirmation Hearing ruling, with the detention time averaging of 1.5 years. Three trials have been concluded: one conviction, one pending sentencing and one acquittal. On average, these three trials have taken five years from detention to sentencing.

VI: The Benefits of Proceeding Slowly through the Adjudication Process
Despite sufficient groundwork laid out through the Rome Statute for the ICC, and in the eyes of many nations, the ICC has been perceived a failure.  But such perception may be a premature, unsubstantiated judgment. First, the facts must be analyzed and evaluated.

1.    The Appearance of the Process is as important as the Process Itself
Since the Court is still establishing its legitimacy, especially among audiences in Africa,
it is much more important to not only ‘get it right’ but also to ‘get it unquestionably right.’

a: Caution – Because this is a new court, is it important to proceed with caution
in order to gain and maintain credibility and consequently grow in efficiency and power. Gaining and maintaining the respect of the international community is a vital element for the successful continuation of the ICC.

b: Sound Progress – The ICC is a fairly young institution, having been officially active since 2003. Therefore the institution, like the tribunals before it, have to take into account small successes, especially when dealing with doctrine and substantive law that the court achieves in order to evolve its uses and expand its powers through increased efficiency and reduced state opposition. In order for the court to fully realize its potential, it must show the world that it can be a successful permanent institution in international law with clear standards and goals. Each goal achieved through maintaining successful indictments, prosecutions and convictions will lead to progress.

c: Precedence – The ICC is a system where the Court interprets international criminal law. It will need to create a system in which precedence can be established and therefore common law correctly carried out. This is established slowly with each case, either through dismissal, acquittal or conviction.

2.    The Right to a Fair Trial – Evaluation of the Lubanga Case
The rights of the defendant to a fair trial must be scrupulously upheld and many
examples of delay, error and rectification are gleaned through the Lubanga case:

a. Failure to disclosure of all evidence –The OTP was defiant over not disclosing exculpatory evidence and was admonished for his behavior by the justices. The justices also extensively reviewed defense arguments that the OTP had engaged in an ‘abuse of the process’ by conducting its investigations through third parties and by failing to properly verify evidence. Because of these charges against the OTP and subsequent delays, the judicial panel dismissed the trial twice. However, the case was re-opened, twice, upon appeal.

b. Intermediaries, third parties to the prosecutor – Intermediaries were contacting victims and witnesses. Allegations of inappropriate behavior surfaced. As a result, procedural measures were enacted to secure the identity and disclosure of the victim/witnesses to the accused and establish the need for court protection. Regulations were also set in place concerning intermediaries.

c. Lessons learned – Court officials have indicated that efforts are under way to implement lessons learned from the Lubanga trial that can be applied to future proceedings. This is very important, and Human Rights Watch has asserted that any such lessons learned should be made transparent and publically disclosed.

3. Establishing a Historical Record
The ICC exists not only to prevent impunity but also, and as importantly, to establish a firm historical record. A domestic prosecutor merely needs to establish proof beyond reasonable doubt; an ICC prosecutor (and for that matter, everyone else involved in the trial) must establish, perhaps for the first and only time, a complete historical record of the atrocities. This offers a rare chance for the world’s leaders and citizens to scrutinize both the deplorable decisions made by particular leaders and the atrocities committed by the soldiers and agents of those leaders. Without such a forum, there would be no method for assuring that the masterminds and perpetrators of genocide, crimes against humanity and/or war crimes are justly punished.
4. Victim Participation
Victim participation is significant – retrieving testimony from victims at the ground level and getting them to The Hague is time consuming and expensive yet vital to the unique mission of the court. The Lubanga trial addressed, for the first time, victim participation and established their rights within the proceedings. This trial recognized 123 victim participants.  More importantly, the Court recognized the need and established protection during significant portions of the trial: closed hearings due to security concerns that potentially risked the victim/witnesses and established an effective victim/witness protection scheme.  Lastly, the Court recognized that the victims and their families needed an opportunity to regain a sense of power. Such power was regained when the victims were provided the support and time to appear in a court and identify those who wronged them.
5. Administrative Process
Administrative processes take time, and each document must be translated in a minimum three different languages: French, English and the defendant’s native language.

VII: Problems Obstructing Expeditious Adjudication

1. Ineffective Leadership within the OPT
When the ICC was established through the Rome Statute it became evident that the role
of the chief prosecutor would be essential to the court’s success, and in many ways the successes of the Court would mirror the successes of the prosecutor.  The OTP has been widely criticized for its continuous failures, which has led to a decrease in the confidence of the OTP.  Behaviors of grandstanding and ineffective leadership have also circulated concerning the previous prosecutor Luis Moreno-Ocampo, an elected official who headed the OTP for nine years and served until his term expired: June 2003 to June 2012. Moreno-Ocampo has also been criticized for miss-management and questionable decision making, which cumulated in alienation of subordinates and court officials.  Prosecutors and investigators addressed grievance surrounding Moreno-Ocampo’s micromanaging and questioning their decisions. Some experienced staffers quit, while those that remained experienced a low morale.
2.    Internal Conflicts
Internal management and personality conflicts developed almost immediately within the
leadership of the ICC. There are three separate divisions of the ICC: President – ceremonial head and external relations; Registrar – lead administrative officer, and the OTP – Moreno-Ocampo. It has been generally understood that the OTP has clashed with the two other division heads; for example, arguing with the Registrar regarding human rights and witness protection and refusing to coordinate issues, investigations and cases with the president.  There have also been reports of battles over ‘turf’ and resources in an effort to establish and maintain authority.
3.    Judicial Concerns of the OTP during the Lubanga Trial
Twice the justices in the Lubanga trial ordered his release due to prosecution errors: failing to disclose evidence and failing to identify intermediaries used in gathering evidence. Twice, the decisions were reversed on appeal. Although reversed, the appellate judges harshly criticized the OTP. The OTP also failed to implement court orders. This caused animosity of the justices and thereby undermined “the confidence in the OTP’s good faith and competence.”

4. Poor Choice of Defendants
The OPT’s office had made poor choices in selecting defendants. Of the thirty-six individuals indicted, seven have been dismissed, never making it to trial. Moreover, only three have faced a full trial. This record is costly, expending time, energy and resources not only upon the courts but also the arresting state and the state party and victims that hoped for some form of adjudication.
5. Usual Growing Pains of a New Institution
Time delay can be detrimental and question the ability of the institution. Defendants die off, either in custody or while at large. But before a warrant or indictment is handed down, a great deal of time, resources and energy is spent during the preliminary stages. Such time would be well spent if after the arrest the charges held against the defendant. Moreover, delays in setting up the court are time consuming and can have several consequences: crucial evidence can deteriorate or be destroyed, the perpetrator can escape or disappear and witnesses can relocate or be intimidated. Therefore, delay should be the last resort because it is time consuming, costly and high profile crimes risk never facing trial.
This phase is also faced with questionable procedural law. As a newly formed permanent international court, procedures have yet to be solidified. For the most part, precedence is being made with each case heard, and as questions arise, the court procedures need to be suspended while issues are addressed and resolved.

VII: Solutions
Without satisfactory short-term success for the ICC, there can be no long-term success. In order to ensure the long-term success and stability of the ICC, the failures must be addressed and the accomplishments must be enlisted as a tool for building. Over the next decade, several adjustments must be made in order to secure a foothold in the global world.

1. Critically Evaluate Past Tribunals
Recognize that the ICC is a relatively new court – in its adolescence state. For many
institutions, especially those crossing many international boundaries, it needs to be expected that time will help evolve and shape its future. For this reason, it helps to examine the early years of other international judicial systems such as the ICTY and ICTR. The groundwork for these two institution were essentially revolutionary, surrounded civil war and crimes committed therein. Punishment was on an international level. Many people questioned the authority of the UN Security Council to involve itself and establish a judicial system to deal with domestic disputes. Due to these factors, as well as monetary issues, both of these courts, although established quickly, found it hard to secure their foothold on the international stage.  Both the ICTY and ICTR struggled in the early stages, but now both are thriving and have become fully recognized functioning institutions of international judiciary law. In order for the ICC to mirror the successes of these tribunals, the key will be patience.
2. Figureheads – Maintaining and supporting an effective unite in each division is
critical. Moreno-Ocampo obviously had not fulfilled the exorbitant expectations paced upon him as chief prosecutor. Despite the intentions of firm policy, Moreno-Ocampo’s record was one of alienation and production of little results. He was also categorized as abrasive and uncooperative. The next chief prosecutor needs to be charismatic and assertive while simultaneously working in the confines of the international system. This can be a very fine line to walk. On one hand, the authority of the ICC must be upheld, but on the other, it also must be understood that the court uniquely deals with many nations, and the diplomacy involved in receiving full cooperation from the parties of the Rome Statute must be a priority. In other words, the new OTP, Fatou Besouda, has an enormous task of not only locating and indicting the correct situations and criminals, but also receiving the full cooperation of the states functioning within the treaty.
3. Critical Selection of Cases
The more successful and justifiable cases that are brought and handled before the ICC, the more it will receive the respect and confidence of the international community. In order to do this, the ICC will need to be willing to be flexible and enlist a strong prosecution team. The OTP must also timely prosecute and adjudicate all cases. When it can successfully complete cases and see things through to the end, it will be setting a foundation for future cases that will likely speed things along.
4. Correction and Removal of Division Heads
No institution should have to wait nine years to remedy internal conflicts. For the security and continuation of a strong institution, checks and balances must be set in place for removal.

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