Managerial Judging Goes International, but Its Promise Remains Unfulfilled: An Empirical Assessment of the ICTY Reforms

Abstract

This Article analyzes whether managerial judging reforms introduced to expedite the procedure at the International Criminal Tribunal for the Former Yugoslavia (ICTY) achieved their goal. Using multivariate survival analysis, the Article tests the hypothesis that the higher the number of reforms a case was subjected to, the shorter the pretrial and trial phase of that case should be. Our four models for pretrial and trial reveal that the number of reforms is significantly correlated with longer pretrial and trial phases. The Article explains that the reforms made the process longer rather than shorter because they added new procedural steps, requirements, and work without delivering promised results, such as lower numbers of incidents under discussion at trial, live witnesses testifying at trial, and interlocutory appeals entertained by the Appeals Chamber. The reforms did not deliver these promised results because ICTY judges either did not use their managerial powers or used them deficiently, and the parties managed to neutralize the implementation of the reforms. To explain judges' behavior and the parties' ability to neutralize the reforms, this Article argues that an unnoticed challenge for managerial judging is that the court is likely to have limited information about the case, which may lead judges to restrict use of their managerial powers to avoid making inefficient or unfair decisions, and enables the parties to neutralize the court's decisions. In addition, the ICTY lacked an implementation plan to encourage judges to change their behavior. The Article also explains the incentives that prosecution and defense had to neutralize the reforms.