By: Jim Ransdell, Law Clerk, U.S. Court of
International Trade; LL.M. Public International Law, Leiden University
Since 2009, seven international or ‘hybrid’ criminal
tribunals have opened or closed. International criminal law’s institutional
landscape is thus in great flux. The “tribunal shuffle” resulted in a
significant decrease in states’ budgetary commitments to international criminal
courts and tribunals (ICCTs). The International Criminal Court (ICC) has itself
witnessed a renewed push for “zero nominal growth” budgeting, and has struggled
to collect states’ dues on time. If enthusiasm for ICCT funding is waning, the
ICC’s financing practices should adapt to temper the damage. This article will first
describe ICC funding mechanisms and associated “free rider” and independence
hazards. Second, it will describe due process constraints on the ICC’s
financial planning and Rome Conference debates over funding mechanisms adopted
by other tribunals. Third, it will survey recent investments in ICCTs as a
whole, and describe financial problems currently faced by individual ICCTs. This
article will conclude with general observations on ICCT financing, and will
suggest an alternative to address problems identified in practice.
I. Strained Funding at the ICC and Procedural Hazards
The ICC budget is set annually by the Assembly of
States Parties (“ASP”), which thereafter funds the budget through assessed
member contributions. Like most international organizations, but unlike many ICCTs,
ASP assessments create legal obligations upon members. At the 2016 ASP, states
narrowly exceeded a “zero nominal growth” budget pushed by economically
powerful members, but still authorized less than half of the modest increase
initially proposed by the ICC, growing the budget by a mere 3.57%. This echoes
past ASPs where proposed budgets were subject to arbitrary cuts, and it happened
despite repeated notice that, notwithstanding significant efficiency-raising managerial
adjustments, the ICC is overburdened as currently supported. States parties’ persistent
nonpayment of assessed contributions further exacerbates the problem. At 2016
ASP, for example, 25% of the previous year’s budget ($36 million) remained
unpaid.
This dysfunction is not a
necessary consequence of members-based funding mechanisms. The ICC’s mechanism is
modeled on that of the International Tribunal for the Law of the Sea (ITLOS),
yet ITLOS’ version of the ASP, the States Parties of the Law of the Sea, has
operated largely without issue for over 30 years, whereas the ASP has seen protracted
contention over finances. This difference may be rooted in the ICC’s more
active, politically contentious docket, as the experience of UN Peacekeeping
Operations financing suggests states parties will leverage control over budgets
to lodge political protests.
The ICC is also authorized
to benefit from United Nations funds, or voluntary contributions. However,
despite reporting annually to the UN General Assembly, the ICC’s costs, even
those from cases referred by the Security Council, have been borne exclusively
by ICC states parties. The ICC-UN financial relationship has been acrimonious
at times, with the Bush administration earlier threatening to withhold UN dues if
the UN budget helped finance the ICC. Voluntary contributions have held
relatively steady over the life of the court, recently equaling about 1% or less
of the budget.
This presents a “free
rider” hazard whereupon non-parties enjoy public goods, such as general
deterrence and denunciation of Rome Statute crimes, without bearing the costs
of running the ICC. This was implicitly recognized during early ICC
negotiations, where some states criticized an assessed contribution funding
mechanism as creating a disincentive for membership. In addition to moral and
social benefits, non-contributing states enjoy indirect economic benefits. Whereas
Rome Statute crimes often contribute to significant economic disruption at the
place of commission, the absence of such crimes improves national stability,
which in turn improves economic performance, and creates a more favorable
investment environment. States that don’t contribute to international criminal
justice efforts, however, compete for investment opportunities on an equal
footing with contributing states.
That the ‘universal’
character of the UN budget would remedy this situation prompted early proposals
that the UN fund the court. However, these proposals were ultimately rejected, largely
due to independence concerns. Ironically, the states parties funding mechanism
appears to have largely allowed economically powerful states to control funding
debates at the most recent ASP, a risk highlighted by Denmark during Rome
Conference debates and again by later commentators. Yet, it appears unlikely
the ICC can expect direct financial support from the UN budget any time soon,
and even UN-ICC administrative support may come under fire from the current US
administration.
II. Learning from Practice: The ICC’s Experience
and Other ICCTs’ Approaches
A. Annual
or Biennial Budgets?
All but one operating international criminal court
or tribunal is financed through an annual (ICC, STL, SCSL, Kosovo Specialist
Chambers (KSC)) or biennial (ICTY, ICTR, MICT, ECCC) budget. The exception is
the Extraordinary African Chambers (CAE) which was financed by a single
lump-sum payment. While a biennial budget reduces resources expended in
preparing budget proposals and permits a degree of long-term planning, it
limits flexibility and requires proposing budgets on 2-3 year projections. Accordingly,
during the Rome Conference, some states attacked the UN’s medium-term budgeting
approach as unable to provide “appropriate and continuous funding.” Subsequent
practice has shown that projection can be especially difficult for the ICC,
which, unlike more jurisdictionally-circumscribed tribunals such as the ICTY,
monitors developments in over 120 states parties and whose investigation costs
can fluctuate significantly depending upon host countries’ political and
security situations.
Additionally, due process requirements stricter
than those of earlier ad hoc ICCTs constrain the ICC’s ability to defer
expenditures. These limit the Prosecutor’s window for initiating arraignment following
detention, and the window for trial preparation. Arraignment involves a lower
burden of proof than trial, but its standard (“substantial grounds”) exceeds
that required for an arrest warrant (“reasonable grounds”). This, combined with
the unpredictability of arrest, e.g., for Omar al-Bashir, who travelled to
multiple ICC member states but remains at large, can strain budgets for
detention facilities and prosecutorial investigations.
All defendants are entitled to trial without
“undue delay,” though no particular remedy is prescribed. However, the
Prosecutor must prepare to meet a substantially higher evidentiary burden at
trial (“beyond a reasonable doubt”), requiring significant investigative
resources. Likewise, unexpected caseload increases strain defense and Registry resources.
For example, Ahmad Al Mahdi’s surrender to the Court was unexpected, and even
his relatively cheap and uncontested trial prompted a $212,000 supplementary
budget request for 2016. The 2004 ASP resolution establishing a $10.7 million
Contingency Fund cited similar concerns. For detained defendants, whereas Article
60(2) ‘interim release’ has, to date, depended upon factors independent of
prosecutorial conduct and applies only to non-flight risks; Article 60(4) flatly
prescribes release for “inexcusable delay.” It is unclear whether delays rooted
in budget shortfalls would be ‘inexcusable.’ However, independent of the Rome
Statute’s terms, any lengthy delay implicates suspects’ due process rights, threatening
the ICC’s image as an impartial tribunal. At the very least, such constraints suggest
biennial budgets are insufficiently flexible to accomodate the ICC’s caseload.
B. Source
of Periodic Contributions?
The desirability of facilitating flexible spending
conflicts with practical difficulties of delivering periodic contributions. Such
periodic contributions come from states parties (ICC), volunteer financiers
(SCSL), the UN (ICTY, ICTR, MICT), the EU (KSC), or a combination of host state
support and volunteer financiers (STL and ECCC). At the STL and SCSL, voluntary donations are managed
by a “Management Committee,” whereas the UN Secretary-General manages donations
to the ECCC. During the Rome Conference, states cited failures by institutions
funded directly by states parties, as well as UN’s difficulties in securing
contributions, but selected the former option.
C. Hindsight
is 20/20: An Untapped Alternative?
Since the 1990s, non-criminal international courts
have pioneered alternatives to periodic financing mechanisms. Motivated by
independence concerns, the Caribbean Court of Justice (CCJ), established in 2001,
is financed by a trust fund with seed money supplied by a loan from the
Caribbean Development Bank, to be repaid by CCJ states parties. The system’s
major drawback is its dependence on the global market, but while it suffered
losses during the Global Financial Crisis, it has since recovered without
interrupting court operations. The ICC is much larger than the CCJ, but has
virtually no capacity to save. A trust fund could at least provide stable income
for basic court operations. Since 2012, ICC budgeting guidelines have directed
costs be divided among “situation-related costs” and “permanent costs,” which
provides a starting point for identifying basic court operations. For
politically sensitive organs like the Office of the Prosecutor, an annual
budgeting process could enable regular oversight. However, while political
realties might demand it, extensive control over the Prosecutor’s budget can
impose very real limitations on what is supposedly an independent institution.
Perhaps realizing this, Denmark proposed creating
a similar fund to finance all ICC operations, but despite the
endorsement of at least seven states and the 14-nation Caribbean Community,
this was not included in the Rome Conference coordinator’s compromise proposal.
For comparison, 11 countries voiced support for pure states parties funding, 10
voiced support for pure UN funding, and 17 voiced support for a mixture of the
two. Aside from the Caribbean Community’s unified front, and the US, Japanese
and Chinese support of states parties funding, countries did not break down
along clear political or socio-economic lines. Considering the “substantial
concessions” made by all sides of the funding debate at the Rome Conference, as
well as the current political climate, any fundamental financing changes appear
unlikely at the moment.
III. Recent Global Investments in International
Criminal Justice Institutions
Between 2012 and 2016, the authorized budgets of ICCTs
dropped 29%, a decrease of over $115 million. (Complete data for 2017 is
unavailable, but will likely reveal a slight funding improvement.) The overall
decrease was largely due to the concurrent winding-down of two expensive
‘purely’ international tribunals, the ICTY (2017) and ICTR (2015), as well as
the ‘hybrid’ SCSL (2013). The recently created ‘hybrid’ STL (2009), which is
half-financed by Lebanon; MICT (2010), which is ‘purely’ international but has
limited functions; ECA (2013), which was created for a single trial; and EU-financed
Kosovo Specialist Chambers (2016), have not offset the resulting decrease. Over
this same period, the ICC experienced limited, incremental budget growth
averaging 5.86% annually. Despite the steep decline in authorized budgets, the
ICC, SCSL and ECCC have all complained of recent problems securing necessary
assessed or voluntary contributions. This is not entirely unique to ICCTs,
however, as late payment of contributions to international organizations has increased
in recent decades.
TABLE 1:
International Community’s Expenditure on ICCT Budgets,[i] 2012-2017 (USD,
thousands)
Figures
for ‘hybrid’ tribunals[ii] (STL[iii],
ECCC) exclude partner state contributions because of those tribunals’ quasi-domestic
role for those states.[iv]
YEAR |
ICTY* |
ICTR* |
MICT* |
STL |
SCSL
Δ |
ECCC |
SCK |
ICC |
TOTAL |
2017 |
42,316 |
0 |
61,681 |
unavailable |
2,980 |
20,090 |
11,810+[v] |
144,587 |
283,464+ |
2016 |
30,545 |
11,135 |
21,742 |
34,182 |
2,438 |
25,700 |
19,326 |
139,591 |
284,659 |
2015 |
89,217 |
44,722 |
51,929 |
32,619 |
3,500 |
27,100 |
0 |
130,666 |
379,753 |
2014 |
89,856 |
43,594 |
57,916 |
32,629 |
2,129 |
21,700 |
0 |
121,656 |
369,480 |
2013 |
126,629 |
89,740 |
25,923 |
32,603 |
11,196 |
26,100 |
0 |
115,120 |
427,311 |
2012 |
121,460 |
78,132 |
23,662 |
30,108 |
14,222 |
25,100 |
0 |
108,800 |
401,484 |
* Organization
supplies both gross and net figures. Lower “net” figure has been used to
reflect actual contributions. Gross figures supplied in endnotes.
Δ The SCSL
became the “Residual Special Court for Sierra Leone” beginning in 2014.
However, the above figures omit the ICC’s
Permanent Premises project (PPP), which was completed in December 2015, $15
million over budget, at a total cost of $218 million. The PPP was financed by a
loan from the Netherlands, to be repaid through a mixture of voluntary and
assessed contributions. Roughly $112 million remains outstanding as of 31
December 2015, but $73 million was paid between 2012 and 2015. Thus, the
decrease in budgetary contributions is significantly offset by states’ PPP
investments. After factoring in PPP contributions received, the international
community’s contributions appear steadier between 2012 and 2015, although much
like contributions to court budgets, overdue assessments are significant,
totaling $22 million. Furthermore, contributions to ICCT budgets took their
steepest dive in 2016, dropping 25% year-over-year, excluding PPP contributions.
To offset this and equal 2015 spending levels, PPP contributions would have to
more than triple in 2016. Once all PPP assessments have been paid, either a
drastic increase in contributions to existing tribunals’ budgets or a new
tribunal would be required to return ICCT expenditures to earlier levels.
TABLE 2:
Adjusted Total Financial Commitment to ICCTs (USD, thousands)
YEAR |
ICC
Budget |
ICC
Perm. Premises |
TOTAL
ICC |
TOTAL (Avg.
413,349) |
2015 |
130,666 |
31,880 |
162,546 |
(379,753) 411,633 |
2014 |
121,656 |
17,456 |
139,112 |
(369,480)
386,939 |
2013 |
115,120 |
15,118 |
130,238 |
(427,311)
442,429 |
2012 |
108,800 |
10,913 |
119,713 |
(401,484)
412,397 |
The ICC’s existence generally makes new ad hoc tribunals
less likely. Nevertheless, two candidates have received recent attention. First,
African withdrawals from the ICC have renewed interest in the 2014 Malabo
Protocol, which amends a 2008 Protocol merging the African Court of Human
Rights with the African Court of Justice, by creating a criminal chamber within
the new court. Only five of the required fifteen states have ratified the 2008
Protocol, while no state has ratified the 2014 Malabo Protocol. While such a
court is perhaps a question of ‘when’, rather than ‘if,’ neither political will
nor funding will likely manifest soon. Second is the possibility of an ad
hoc tribunal for Syria. After a Security Council resolution referring the
Syrian situation to the ICC was vetoed in 2014, a December 2016 General Assembly
resolution established an investigative panel to gather evidence of
international crimes in support of a yet-to-be-determined future tribunal. Work
to implement this resolution has already begun, though a Russian veto will
almost certainly prevent the Security Council from creating a tribunal. This
leaves the possibility of a ‘hybrid’ tribunal created by agreement between the
UN and a host country, but such tribunals have previously involved the
agreement of the state upon whose territory the crimes took place (e.g., SCSL,
East Timor Tribunal, ECCC), and Syria’s consent is unlikely.
A new ICCT could re-energize the global movement
against impunity and stoke increased funding. However, any such discussions
should learn from the financial struggles of existing tribunals. Beyond the ICC,
the SCSL and ECCC continue to struggle to secure voluntary donations, instead
turning to the UN to cover the difference. Furthermore, although the ICTY
received nearly $1 million in voluntary donations in 2015, the UN’s Fifth
Committee subsequently noted “ongoing difficulties” in securing voluntary
contributions for UN-funded tribunals. That the SCSL and ECCC’s cash flow
problems have persisted over the life of these tribunals further impugns the voluntary contribution model, although the STL does not
appear to be experiencing sizeable shortfalls. Concerns over voluntary
contributions’ unpredictability and irregularity led states to reject such a
model for the ICC. Yet, when forming the SCSL (2002), ECCC (2005) and STL
(2009), actors apparently felt countervailing considerations warranted such a
model. However, while states may be more willing to form ‘hybrid’ tribunals which
are cheaper than ‘purely’ international tribunals, reduced overall costs have
not translated into reliable contributions.
Recently, UN-based funding mechanisms have
outperformed those of other ICCTs. This relative success may reflect their
procedural context: to exist, Chapter VII tribunals established by the UN
Security Council must avoid a Permanent Member’s veto, which suggests broad
support. In order to fund such tribunals (ICTY, ICTR, MICT), the UN annually issues
separate “international tribunals” assessments to its members. In the past, the
UN structure has allowed unique resourcing arrangements, for example, drawing
on unused peacekeeping funds for early tribunal expenses; utilizing gratis or seconded
personnel from the Secretary-General; and transferring funds among tribunals. Nevertheless,
these tribunals have experienced financial struggles in the past, but recently the
UN has provided an effective administrative apparatus for ICCT financing. Cumulative outstanding payments for all UN-financed tribunals totaled $65
million at the end of 2015, but tribunals’ cash balances have remained positive
since at least 2013, meaning the lateness hasn’t impacted their ability to make
necessary payments. However, unpaid dues have nearly doubled since 2012, which may
portend trouble and indicate waning enthusiasm for tribunals’ less
headline-grabbing completion operations.
The data above suggests two conclusions: (1) compared
with 2012, states are contributing considerably less to ICCTs, and (2) ICCTs
founded on voluntary contributions often suffer considerable financial
uncertainty, as compared with tribunals founded on compulsory assessments. Despite
the recent, precipitous overall decrease in budgetary support of ICCTs, the ICC’s
recently completed infrastructure underscores its permanence. Furthermore,
whereas the potential for new tribunals has shrunk, thanks partly to UN
Security Council gridlock, international organizations’ human rights budgets,
which uphold ideals complimentary to international criminal law, have recently risen.
IV. Conclusion
Placed in context, unsatisfying budget debates at
the 2016 ASP are a symptom of a wider problem with ICCT financing. Even
factoring in PPP contributions, countries have recently downgraded investments
in ICCTs. While the decrease in gross authorized contributions is a new trend,
international criminal justice institutions have fought countries for funding
over much of their 24-year existence. Practice has revealed inadequacies in all
existing ICCT funding mechanisms, all of which have experienced funding
difficulties rooted in inadequate state cooperation. Recent ICC investigations
into Afghanistan and Georgia clash with the interests of politically powerful
non-parties, the US and Russia, thus pressure on the ICC may increase. A
permanent fund like that proposed by Denmark and currently employed at the CCJ would,
by adding a degree of automation to ICCT funding, reduce independence problems associated
with states’ abusing the power of the purse. It could furthermore address free
rider hazards if all UN members contribute. The PPP’s loan arrangement essentially
constitutes a test run of trust fund financing. Nevertheless, such a change
appears politically unfeasible at this moment.
The lack of a common method for presenting ICCT
budgets makes it difficult to draw detailed financial lessons from other
tribunals. Furthermore, while many commentators have criticized cost overruns, few
have suggested concrete improvements to ICC financing methods. Thankfully, the
ICC has taken proactive steps in this direction. However, with “justice” as its
deliverable, improving the ICC’s existing financial system must begin with
developing agreed-upon performance indicators which can guide future planning
and criticism. Thereafter, the court has a range of options for tweaking an
imperfect system.
[i] The Extraordinary African
Chambers’ (CAE), which opened in 2013, has been excluded from these
calculations because it was financed by a single lump sum payment pledged in
2010 for the trial of Hissène Habré. Le Financement des Chambres, chambresafricaines.org,
12 June 2013, available at www.chambresafricaines.org/index.php/le-coin-des-medias/mediatheque/488-le-financement-des-chambres.html; Affaire Habré: Le délai de
l’instruction a été prolongé de 8 mois, chambresafricaines.org, 17 April 2014, available
at www.chambresafricaines.org/index.php/le-coin-des-medias/evenements/588-affaire-habr%C3%A9-le-d%C3%A9lai-de-l%E2%80%99instruction-a-%C3%A9t%C3%A9-prolong%C3%A9-de-8-mois.html; Accord entre le Gouvernement de la
Republique du Senegal et l’Union Africaine sur la creation de Chambres
Africaines Extraordinaires au sein des Jurisdictions Senegalaises (2012), Arts.
1, 32.
[ii] While the SCSL is a ‘hybrid’
tribunal, pursuant to the formation agreement, Sierra Leone is not required to
pay any particular percentage of the SCSL’s expenses. Agreement Between the
United Nations and the Government of Sierra Leone on the Establishment of a
Special Court for Sierra Leone, UN Doc. S/2002/246 (2002), App. II, Art. 6.
[iii] Pursuant to a UN Security Council
Resolution, Lebanon bears 49% of the STL’s costs, while the rest are covered by
“voluntary contributions.” Security Council, Agreement between the United
Nations and the Lebanese Republic on the establishment of a Special Tribunal
for Lebanon, UN Doc. S/RES/1757 (2007), Annex I, Art. 5(1).
[iv] While Cambodia often had to seek
foreign assistance in meeting what was nominally its national contribution, see Y.Y. Kwan, “Justice Delayed: Post-Colonial Hauntings in the Khmer Rouge
Tribunal Hybrid Court System”, in S. Miyazawa, et al. (eds.), East Asia’s
Renewed Respect for the Rule of Law in the 21st Century (2015), at 59, it is
difficult to find reliable numbers as to exactly how much was paid by Cambodia,
and thus its contributions have been excluded in their entirety.
[v] As this was the only ICCT budget
issued on a fiscal year schedule, it has been split pro rata. The “+” following
the figure for 2017 reflects the expectation that further funding will be
authorized for the latter half of 2017. European Council Decision (CFSP)
2016/947 amending Joint Action 2008/124/CFSP on the European Union Rule of Law
Mission in Kosovo (14 June 2016), Art.1 (approving a budget of EUR 29.1 million
to cover costs between 1 April 2016 and 14 June 2017).
International
Judicial Monitor