New Empirical Work on International Criminal Law
Máximo Langer and Joseph W. Doherty at UCLA have just posted Managerial Judging, Court’s Limited Information and Parties’ Resistance: An Empirical Assessment of Why the Reforms to Expedite Procedure of the International Criminal Tribunal for the Former Yugoslavia Did Not Work. It’s an excellent piece and a rare example of empirical work in international criminal law. Its findings show the valuable contributions that empirical studies could make to the field.
Langer and Doherty examine whether procedural reforms at the International Criminal Tribunal for the former Yugoslavia (ICTY), which were introduced to expedite the tribunal’s proceedings, were in fact successful. The study finds that these so-called “managerial judging” reforms-e.g., introducing pretrial judges, mandating pretrial conferences, asking the parties to exchange information about their cases earlier in the process, encouraging them to reach agreements on facts and legal issues, and reducing the number of witnesses-failed to accomplish their intended purposes. In fact, many of these reforms lengthened the proceedings.
The study controlled for a number of variables that could explain the result (e.g., specific case characteristics, court capacity, and guilty pleas). So why might the reforms have failed? The main reason seems to be that the new managerial tools were not used frequently enough. Moreover, the tools that were used added procedural steps that took up time, without reducing other procedures to make up for the added time.
According to Langer and Doherty, the managerial tools were not frequently used for three principal reasons: 1) under a largely adversarial system such as the one at the ICTY, judges have limited information about the case at the time they have to make decisions to streamline the proceedings; accordingly, they are reluctant to use managerial tools to shorten the proceedings because such tools may also lead to inaccurate or unfair outcomes; 2) the ICTY has not attempted to train, monitor, or incentivize judges to implement the managerial reforms consistently; 3) both prosecutors and defense attorneys have little incentive to expedite proceedings and prefer instead to maintain control over their cases.
The authors conclude by arguing that their findings should not be taken as disheartening. They point out that, in international criminal cases, managerial judging may often interfere with the goal of reaching accurate and fair outcomes. ICTY judges were therefore correct to be cautious in implementing the managerial procedural reforms.
There will soon be another ground for the authors to test their conclusions. At the permanent International Criminal Court, which follows a more inquisitorial model, judges would receive the evidence disclosed by the parties early during the pretrial stage. This may minimize one of the major problems that Langer and Doherty found with the ICTY procedural reforms-that judges lacked sufficient information about the case when deciding whether and how much to streamline the proceedings. Because ICC judges would have a better grasp of the case and more extensive information early in the process, they may be better able than their ICTY counterparts to expedite proceeding without interfering with accuracy and fairness. As the ICC begins trying more cases, Langer and Doherty-and others interested in the empirical study of international criminal procedure-should have extensive opportunities for further analysis.