Financing the ICC: what can be learned from the ad hoc tribunals?

How to ensure adequate, reliable and unfettered financing for the ICC? The options range from attaching the Court’s budget to the regular UN budget (as is the case for the International Court of Justice), to having States pay for it (this option is usually divided into: parties to the court’s statute pay for it; States that bring crime complaints pay; States contribute voluntarily); or even encouraging philantropic non-State entities (NGOs, corporations, individuals etc.) to contribute. Each of these options has advantages and drawbacks, and a mix of these approaches is likely to prevail.

The challenge is to find the right mix which will allow it to attain three goals: first, endow the Court with sufficient resources to effectively carry out its work; second, to insulate it from undue political interference; third (something the supporters of the ICC tend to neglect), to avoid creating an expensive international institution that becomes an easy target for demagogues in national parliaments.

Admittedly international criminal justice is expensive. If not in absolute terms at least relative to the costs associated with the maintenance and functioning of other international courts and tribunals. Since their establishment, the budget of the two ad hoc tribunals has continued to grow to reach in 1998 the figure of $64 million (ITFY) and $65 million (ICTR) respectively. The aggregate budget of the two outweighs by far that of all other international courts and tribunals grouped together (excluding the European Court of Justice). The estimated cost of the ICC is between $10 and $150 million a year, with the most likely scenario being between $30-60 million.

The reason for this high cost is that unlike other jurisdictions, where plaintiffs and defendents bear the costs associated with preparing their cases, in international criminal tribunal investigations of cases and evidence-gathering, costs are born by the prosecutor’s office, hence by the tribunal itself. Moreover the ICC will also invariably bear the costs, wholly or in part, of the defence of the indictees, their maintenance while in detention, protection of the witnesses etc. All these items do not exist in the case of other international courts and tribunals (with some exceptions in the case of human rights courts).

Yet, because of its permanent nature, a future ICC will likely face problems unknown to its transient predecessors. The two ad hoc tribunals, after a slow start, are receiving a steady, if not increasing, flow of cases. Hence, the costs of the courts and their financing will remain steady, or again increase. The level of activity of the ICC on the other hand will fluctuate more. Because of the seriousness of the crimes over which it will exercise jurisdiction and because fortunately such crimes are not committed on a daily basis, the ICC may face periods of low level activity interrupted by major conflicts. Securing funding for the ICC the financial resources to activate it when needed, without depending on the whim of politically biased financiers, and at the same time ensuring the most efficient allocation of the scarce resources available for international justice, is a major challenge. The solution might be a flexible budget tactic.

The ICC’s budget will be made up of fixed and variable costs. The fixed component is, by and large, its administration (ie. the registrar, clerical personnel, judges, as well as the court infrastructure etc.). These costs have to be met whether or not there are investigations or trials going on. In most of the international courts and tribunals they represent a large part of the budget. The variable component of the budget are those costs that depend on the number of cases pending before the court (i.e. translators, security, processing and filing of documents, investigations, fees of the defence attorneys (lawyers), witness protection etc.). The prosecutor’s office typically generates the highest variable costs.

Variable costs, in the case of international criminal tribunals, are the most ponderous component of the budget. Yet, they are also the most volatile, difficult to predict, and ultimately the frailest part. For if the prosecutor cannot investigate a case the whole machinery stops or, even worse, risks becoming summary and biased. In the case of the two ad hoc tribunals, both components of the budget have been financed through the UN. This has created serious problems because the tribunal’s budgets being approved year by year, the prosecutor’s have had to face an increase in their work with the resources allocated on the basis of the previous year’s docket. But what will happen in the case of the ICC? If, for instance, between 2000-2002 the court does not have cases pending, but in the year 2002 a civil war breaks out somewhere, involving charges of ethnic cleansing and genocide, will it have the resources necessary to carry out its work? If the court’s budget for the year 2002-2003 was determined on the basis of its ‘idle’ years, the result might be impotence. The experiences of the two ad hoc tribunals show this is not science-fiction.

A solution might be for the court to budget several (3-5) years ahead. This would make it less susceptible to cycles. But this would also mean setting aside a considerable quantity of money for a court that does not always work, making it vulnerable to the attack of demagogues in the world capitals. Another solution would be to separate the budget of the prosecutor’s office (the heart of the machine) from the court’s budget. While the latter could be financed through the orthodox channels (possibly the UN to ensure its institutional support), the former might be financed through a mix of State, UN and non-states contributions. To a certain extent, this has already happened in the case of the two ad hoc tribunals. In 1996-7, to face a sudden surge of activity, States have seconded personnel and advanced cash, the private sector has sent computers and forensic material, and the UN has made an extra effort to approve an expanded budget for the following year. But this took place in an ad hoc and controversial way. Now that States are about to go to Rome to conclude the agreement to establish the ICC, they have the opportunity to transform these early experiences into sound, consistent and, most of all, reliable practice.

Additional information/reading:

• International Review of the Red Cross No. 828, Nov.-Dec. 1997.

  This special issue contains several insightful articles on the Tribunals for the former Yugoslavia and for Rwanda, while also discussing the role of the latter in the African context.

• Justice for Rwanda and International Cooperation. 1997, by Stef Vandeginste, Centre for the Study of the Great Lakes region, Univ. of Antwerpen, Villa C, Middelheimlaan 1, 2020 Antwerpen, Belgium (31 pp.).

  This report for DFID considers the progress and problems in the rehabilitation of the judicial system in Rwanda, and in the ICTR. The report highlights the sensitivities of bringing justice in a post-genocide context: justice must not only be done, it must also be seen to be done, and not as a ‘victor’s justice’. In that sense there is reason for apprehension about arbitrary denunciations resulting from economic conflicts, the under-representation of Hutu in the judiciary, and the reluctance of the Rwanda government to investigate human rights and international humanitarian law violations by its own security forces.

• The International Criminal Court. Making the Right Choices. Parts 1, 2, 3, 4, published by Amnesty International, London (1997-1998).

Useful Websites:

• Fondation Hirondelle: www.hirondelle.org

• Intermedia: www.persoweb.francenet.fr/ ~intermed