International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law

Summer 2017 Issue

Special Report

Power of the Purse: A Macro-Survey of Recent Financing at International Criminal Courts and Tribunals with Special Emphasis on the International Criminal Court

Jim RansdellBy: 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]







































































* 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)


ICC Budget

ICC Perm. Premises


TOTAL (Avg. 413,349)





(379,753) 411,633





(369,480) 386,939





(427,311) 442,429





(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,, 12 June 2013, available at; Affaire Habré: Le délai de l’instruction a été prolongé de 8 mois,, 17 April 2014, available at; 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).

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