Some thoughts on a better use for the ICC budget

Every year, when ASP season at the ICC comes around, it is accompanied by the usual discussions about the budget of the Court. This year’s ASP was a little different with the question of African withdrawals taking the spotlight, but it does not change the fact that the budget remains a regular concern for all observers.

Matt Brown, over at opinio juris, has very clearly set out the problem. It is particularly striking to note that the ICC, with its wide geographical mandate, is functioning with less budget than the ICTY or the ICTR in their heyday, despite the fact that these two institutions were essentially dealing with what at the ICC would be one situation.

The absurdity of the situation is even bigger when observing the daily work of the Court. For example, it appears that the ICC, with its quite considerable workforce, does not have enough budget to run 3 trials at the same time. Not 20 trials, 3 trials. This is absolutely ridiculous.

Of course, this does raise another question, more tricky perhaps: how efficiently is the ICC budget used? Indeed, it’s one thing to consider that the ICC’s budget is too small, and that is arguably true, but it should not be a reason to put under the rug any obligation of self-reflection by the institution itself on how that budget is used.

To take the previous example, I cannot believe that not having the staff to hold three trials at once is only a budgetary issue. The whole point of the ICC is to hold trials! How can it be that this has not been prioritized internally? There are countless sections and sub-sections of the registry whose role, let’s be honest, is quite peripheral to the core activities of the Court. They should be the ones to be understaffed.

This of course highlights a broader issue with the ICC: it has transformed over the years (or was it always like that?) into a Brazil-like bureaucracy, as is always the risk with this kind of institution. As a result, administrative management, rather than being a tool for a fairer process, sometimes seems to have become an objective in its own right, where calendars are set for court hearing, for example, not in order to respect the rights of the Defense, or even to accomodate more generally the parties and participants, but in light of budgetary concerns, space availability, technical difficulties, etc. This is particularly problematic when talking about a judicial institution that has, at least in theory, sets itself the goal of achieving justice in full respect for fair trial principles.

On a lighter note, I have a small suggestion in terms of the budget. I follow the ICC newsfeed, and twitter, and I have the feeling that every second week, the Prosecutor, Fatou Bensouda, is travelling the world for various events in order to promote the ICC, with groundbreaking statements about ending impunity or the fact that children are our future. But the Prosecutor of the ICC should not be a PR representative of the Court. This should be done by its President or the Registry’s outreach section. The Prosecution is merely one organ of the Court and one party to the criminal trial. It should focus on this function, full stop. I am sure that the travel budget of Fatou Bensouda would be sufficient to hire an court usher to be able to hold 3 trials at the same time…

3 responses to “Some thoughts on a better use for the ICC budget

  1. Strange that you would say like this – I imagine that when you are defence counsel before the ICC you don’t really want disclosure done properly (which costs technology and people), and you do not need the statements and other evidence against an accused to be translated (which costs technology and people). You will also not want the trial to take place in various languages so that the accused can understand what witnesses say about him (and this, surprise!, costs money as well).

    I also imagine you would prefer a system where there are no HR and finance/budget sections, so that the judges and the prosecutor can hire whoever they want, and they can simply spend the money they wish, without any rule or mechanism (= people) to enforce those rules. And then who needs auditors, who check how the money is spent? And who needs facilities to support and protect witnesses, or legal staff in the Registry to ensure that internal rules are applied correctly, and that nobody – for instance – breaches the immunity of the accused and tries to bring them before Dutch courts? And who would ever need a detention facility with high standards to ensure that the accused – still presumed innocent – are treated as they deserve, and security to ensure that the public can come and go from the courtrooms? Who would ever need the website of the court, with all of the add-ons and links to databases that NOBODY ever uses, especially in academia? After all, we all go to the ICC everyday and get a hard-copy version of the decisions and judgments, I am sure nobody here requires an internet connection to download decisions.

    etc etc etc. Can you please name which sections in the Registry can actually be eliminated because they do not serve the core business established in the Rome Statute?

    You are right, the issue is really the usher, and I am sure that if the Prosecutor travels a bit less, the ICC can hold 7 trials just like the ICTY was doing a while back…

    • Dear Janice,

      Thank you for your comment. Of course, given the tone of my post, I should expect to receive such feisty comments. But despite my tone, you seem to be answering to something I did not say (that ALL registry services are useless, which would be ludicrous), in a kind of mechanical defense (no pun intended) of what the ICC and its administration do, which in some way proves the point of my post, so thank you.

      ON the substance, while your points deserve more attention than a brief answer here (I’d be happy to discuss them in person, if you’re so inclined), just a few quick reactions:
      – I never said all services you mention in your comment are of no use. They are indeed key, at some level or another, for the good functioning of the Court (whether the service is rendered competently on each of the points you mention is a different issue I will not go into here). My point is that GIVEN the limited budget, there is always a difficult choice to be made in terms of priorities and that I believe some choices are unjustified.
      – I cannot believe that it is solely an ASP budget issue that there isn’t enough staff to hold three trials. Of course the travel budget of Fatou Bensouda will not cover the costs of holding a third trial. It was just an example of getting priorities wrong at the Court. I could also mention salary scales and benefits, but that would take us too far.
      – Please allow me to not answer your question on which sections of the Registry I deem less central to the core function of the core (please note once again that I never said they were not useful), I’ve probably irritated enough people like that with my post.
      – I’m clearly not the only one who thinks that the Registry’s way of operating is suboptimal, starting with the Registrar himself! If not, why the major ReVision project?
      – If you think everything is peachy, then you clearly haven’t recently spoken to anyone who actually works at the Court on a daily basis… assuming you don’t work there yourself?

      I’ll stop there for now, but I’d be happy to hear more of your thoughts.

  2. Dear Dov,

    I found your post very thought-provoking and would be interested in having your view on a couple of points:

    – When you talk of ‘efficiency’, what exactly is it you have in mind? Is it the legal concept of judicial expeditiousness and economy or the (management) concept of efficiency, cost-benefit analysis etc.? I wonder whether, given the now-familiar arguments against managerialism in international law, international organisations are applying wholesale principles and techniques designed for private companies which potentially contradict the underlying values associated with the court (wait for it – I know you will cringe!) of the rule of law, global justice etc.

    – On a similar theme, what you appear to be advocating is at least greater self-assessment by the court of its budget. Is it possible that, similar to government agencies at national levels, such a move might devolve to a focus on targets and figures that look good, but which do not address some of the more fundamental, incalculable aims? You seem to express concerns about how administrative management has become an aim in itself even though a drive for greater efficiency arguably does the same.

    Regards,
    Richard

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