Complexity and Efficiency at International Criminal Courts
The John Marshall Law School
December 20, 2013
Emory International Law Review, Forthcoming
One of the most persistent criticisms of international criminal tribunals, among both academics and policymakers, has been that they cost too much and take too long. This Article responds to that criticism with a new approach that uses the concepts of complexity and efficiency. First, it proposes a method for measuring the complexity of criminal trials. Next, it measures the complexity of the trials conducted at the International Criminal Tribunal for the former Yugoslavia (ICTY), and then compares them to trials conducted at other international tribunals and in domestic courts in the United States. The results are striking. Even the least complex ICTY trial is more complex than the average criminal trial in the U.S., and the most complex ICTY trials are among the most complex criminal trials that have ever taken place. This finding highlights why it is misleading to compare the cost and length of the ICTY’s trials to other courts, both domestic and international, without first accounting for the complexity of those trials.
The second half of the Article explores the efficiency of international criminal trials. Efficiency is defined as the complexity of a trial divided by its cost. Measuring efficiency allows courts that try cases of differing complexity to be compared to one another. The Article calculates the overall efficiency of the ICTY and then compares that to the efficiency of the Special Court for Sierra Leone (SCSL) and a sample of criminal trials in the United States. The results show that the ICTY is more efficient than the SCSL and approximately as efficient as complex murder trials in the United States. It is less efficient than run of the mill domestic murder trials, but this appears to be because efficiency decreases as complexity increases, making relatively simple cases a poor comparator. Although the data is sparse, the ICTY appears to be much more efficient than its closest domestic comparator – mass atrocity trials. Ultimately, the ICTY appears to have been more efficient than cases of comparable gravity and complexity tried in domestic courts or at the SCSL.
Number of Pages in PDF File: 62
Keywords: international criminal law, international criminal justice, international criminal court, efficiency, complexity, ICTY, ICC, SCSL
JEL Classification: K33, K14, K41Accepted Paper Series
Date posted: December 22, 2013 ; Last revised: August 7, 2014
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