The Hague Institute Hosts Debriefing of ICC Retreat on Performance Indicators

On 24 May, The Hague Institute welcomed a number of high-level guests for a debriefing on the second Glion retreat. The retreat, organized by the Swiss Ministry of Foreign Affairs at the beginning of April, offered International Criminal Court (ICC) staff the opportunity to generate ideas about Performance Indicators with a view to improving the efficiency and effectiveness of the ICC as the Assembly of States Parties had requested in a resolution of December 2014.

Stephen Rapp, Distinguished Fellow at The Hague Institute, offered welcoming remarks. Mr. Rapp highlighted the importance of an independent and impartial court dealing with the gravest crimes, without which fighting impunity globally was problematic. While the ICC filled this gap admirably so far, there was, Mr. Rapp argued, a need to continuously improve its processes and procedures.

Dr. Lyal S. Sunga, Head of the Rule of Law Program at The Hague Institute, moderated the discussion and distinguished ‘efficiency’ that related more to procedures to make the most economical use of scarce resources, from ‘effectiveness’ which referred more to the ICC’s overall degree of success in combating impunity, deterring and preventing crimes and serving international justice. It was intuitively obvious, he said, that greater efficiency enhanced the effectiveness of the ICC. Yet it was also important to appreciate that greater effectiveness indirectly enhanced the ICC’s efficiency. Dr. Sunga underlined that effectiveness strengthened the Court’s legitimacy and bolstered the ICC’s cooperation with States, civil society, victims and other stakeholders, raising morale and confidence in the Court and further attracted the support and resources necessary to enhance its efficiency.

Jürg Lindenmann, Deputy Director of the Swiss Directorate of International Law, noted that effectiveness and efficiency were crucial for the ICC in a broad sense, for victims, perpetrators, States parties who contributed financially, and for the Court’s legitimacy and standing in the world. This consideration was the starting point of the Glion sessions. Lindenmann outlined some challenges regarding indicators. Typically, critics consider the cost of the Court, number of trials, number of guilty verdicts or acquittals, or the length of proceedings as key indicators. These measurements were not, however, representative of the important work being undertaken at the Court. As such, Lindenmann argued, there was a need to select carefully the kinds of indicators more suited to the nature and purpose of the ICC.

Taking up Lindenmann’s point, James Goldston, Executive Director of the Open Society Justice Initiative, reiterated the need for indicators to take into account the ICC’s special character and the aims it seeks to achieve. The Court, as Goldston noted, was not comparable to national courts. It had fewer trials and vast responsibilities, while its capacities were limited. Goldston argued that indicators were most useful if they were not merely technical, but assessed progress towards certain defined goals. Indicators offered an opportunity to reflect on and diagnose difficulties encountered by the Court, and to identify avenues for improvement. Furthermore, they allowed for reason-informed and less contentious interaction between the ICC and external actors. Discussions could be grounded in objective evidence to spur strategic dialogue. Additionally, indicators aided the Court to communicate to external actors the ICC’s priorities.

Goldston outlined a number of lessons learned from the Glion retreat. First, the role of the Court’s leadership was central to effectiveness of indicators. If the leadership did not value indicators, the rest of the organization would do likewise. Secondly, adoption and implementation of performance indicators took time. They must be developed, applied, assessed and re-imagined. Third, development worked best where those involved in it engaged in critical self-reflection. Finally, indicators must be assessed from a variety of perspectives. One point of view cannot identify the entirety of the Court’s needs or achievements.

Silvia Fernandez de Gurmendi, Judge and President of the ICC, confirmed many of the points outlined by Goldston. She highlighted the connection between efficiency and effectiveness, and recognized a link between the two as well as between them and external perceptions of the Court. President de Gurmendi outlined four goals of the ICC. First, the Court’s proceedings must be fair, expeditious and transparent. Second, the ICC leadership and management must be effective. Third, the ICC must ensure adequate security for its work, including protection for those at risk as a result of involvement with the Court. Finally, the Court must ensure adequate access for victims to its proceedings.

In outlining these goals, the President emphasized a tension between competing objectives. Improving expeditiousness of proceedings could affect the quality. Conversely, focusing only on fairness and transparency could slow down proceedings. To this end, participants at Glion II discussed various factors needed to measure achievement of goals, and to define specifically what these goals should entail. She posed the question what justice really meant in terms of concrete results and how the Court could measure fairness. President de Gurmendi noted that the Court must remain modest and humble in its assessment. Too much preoccupation on performance measurement risked restricting the time available to meet the pressing demands of work.

Ultimately, the process of developing indicators will take time. Broad consultations with defense counsel and victim representatives, as well as States parties, will be crucial to the success of the enterprise.

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