La antropología filosófica como tarea utópico-moral

Determining whether managerial practices work or not depends on the available evidence. As it turns out, this evidence appears not to support a finding of management’s effectiveness either way. To empirically analyse the effectiveness of managerial practices, the court needs a conceptual model through which data can be fed and the isolated effects of these practices determined against otherwise fixed variables.122 However, there is an inherent limitation in any attempt to capture, whether qualitatively or quantitatively, the complete ‘reality’ of management’s impact.

First, many data cannot be captured empirically. Data on historical or structural injustice, or on psycho-social suffering cannot be represented in measurable forms, and yet their importance is not disputed by ICL practitioners.123 Second, for those data that can be captured, court officials have recalled the difficulty of collecting sufficient and reliable data. At one level, it is difficult to measure success when the court itself has multiple and often conflicting goals. Yet even focusing all institutional energies on one goal – prosecution of international crimes – does not solve the problem. The ICC Office of the Prosecutor is itself

122 _{The ICC has instituted such a methodology in its court capacity model, see ICC, Report on the Court Capacity}

Model, ICC-ASP/5/10, 21 August 2006, para. 13.

123 _{K. Davis et al., ‘Indicators as a Technology of Global Governance’ (2012) 46 Law & Society Review 71, 74–}

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unclear as to the scope and rank of various prosecutorial sub-goals: ‘[t]o evaluate the (cost- )effectiveness of the Office requires first determining what outcome the Office is supposed to produce: prevention of crimes, complementarity achieved, justice (seen to be) done, etc.’.124 Selecting one of these sub-goals, for example prevention of future atrocities, quickly exposes a problem of unverifiability all the way down the court’s activities. As was laid bare in the court’s activities in relation to Colombia, it is difficult to isolate and measure the precise contribution of the ICC towards the prevention of future hypothetical atrocities, especially when no OTP investigation was ever opened into the situation, and when the OTP’s activities were conducted alongside a range of other peace-building measures.125

Accordingly, to attempt to isolate management’s contribution to organisational performance may be to decontextualize it so thoroughly that it loses its explanatory force. The OTP has grappled with the toss-up between accurate isolation and reliability in context: ‘one needs to determine how to measure the impact of the Office on the outcome which comes with challenges of isolating its impact from that of many other actors and factors and with the challenge of organizing a reliable measurement’.126 Using indicators and assessing their specific effects within the ICC may also be hindered by ‘the relatively limited number and great diversity of its cases as well as the different underlying contexts and country situations that the Court … may need to address’.127 Together these empirical obstacles make it difficult to evaluate management’s effectiveness: at best they are a proxy for court success; at worst, they offer a distorted picture based on statistically insignificant data.

Third, and barring these general obstacles, management in the ICC context harbours another empirical challenge, namely the frequency and volume of managerial reform. Court officials note that since efficiency is ‘an ongoing process’ it is difficult to take a snapshot of their effects in isolation.128 The volume of managerial practices introduced within the ICC over its first two decades attests to the never-ending character of reform. Yet this has meant that critical evaluation is routinely deferred. The narrow timeframe within which managerial

124 _{ICC, Office of the Prosecutor Strategic Plan June 2012-2015, 11 October 2013, para. 95.}

125 _{Two empirical studies into the deterrent effect of the ICC’s activities in Kenya and Libya are divided on the}

court’s positive contribution to deterrence. However, both agree on the difficulty of providing any conclusive findings based on the available evidence, see C. Hillebrecht, ‘The Deterrent Effects of the International Criminal Court: Evidence from Libya’ (2016) 42 International Interactions 616, 628; Y. Dutton and T. Alleblas, ‘Unpacking the Deterrent Effect of the International Criminal Court: Lessons from Kenya’ (2017) 91 St. John’s

Law Review 105, 108.

126 _{OTP Strategic Plan 2012-2015, para. 95.} 127 _{Second Indicators Report, para. 18.}

128 _{ICC, Comprehensive Report on the Reorganisation of the Registry of the International Criminal Court, August}

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practices are proposed, introduced, implemented, and subsequently altered or discarded, militates against genuine evaluation. By the time the court has collected all reliable data, managerial bodies have already moved on, rendering the conclusions the court makes obsolete. The CBF has a penchant for such breathless reform, often advocating reform at one stage, then further information and refinement at the next, even while the original reform is still being implemented. Such hastiness offers little hope of measuring the effectiveness of managerial practices and suggests an institutional indifference as to their success.

As a last resort, the court has often affirmed management’s effectiveness by assertion. Thus, the OTP has claimed that ‘[t]he introduction of a revised strategic planning process, of a systematic lessons learned process as well as the review of the investigative and prosecutorial strategies and standards have and will further improve the performance of the Office’.129 Yet the various empirical obstacles which militate against the claim to effectiveness leave such assertions as these and Ambach’s to ring hollow.