Sentencing Taylor, Suffering Victims and Collective Crimes: The Limits of International Criminal Law

Posted on June 11, 2012 | Leave a comment
Cross-posted on Opinio Juris

On the 30thof May, the SCSL sentenced Charles Taylor to 50 years in prison. The sentencing judgment raises a number of interesting issues. some commentators, such as William Schabas, or on Opinio Juris, Marina Aksenova, have discussed the length of the sentence, finding it either too long, or adequate, depending on the preferred objectives of criminal justice (rehabilitation, retribution, deterrence). Wherever one stands on this issue, I think that, despite it being common practice in a number of international judgments, handing down a single sentence for the entire array of crimes convicted, rather than having them individualized does not help achieve the goals one ascribes to sentencing. Indeed, how can there be deterrence, if there is no knowledge that a specific crime for which a person is convicted carries a specific sentence? There is also a problem of predictability, because we don’t know what the judges would have decided if Taylor had for a reason or another been acquitted on one of the counts. The only thing that can be taken out of the sentencing is that it is condemnable to generally participate in the events, and the fact that a couple of crimes more or less took place in the course of things becomes irrelevant.

Which brings me to the main point I want to address here: the limits of criminal law in addressing mass atrocities, both because of the question of gravity and because of the collective dimension of the acts.

  • The question of gravity
I have often commented here on the difficult assessment of the criteria of gravity in the ICC framework. In a nutshell, given the fact that the ICC, and international tribunals in general, are competent to prosecute the gravest crimes of interest to the international community as a whole, how does one define an additional notion of gravity within this context? This is made even more complicated because most people refuse to open the Pandora’s Box of a hierarchy of crimes, which would be reflected in sentencing. But if all international crimes are equally grave, then how do you justify given a higher sentence for one of them rather than the other? It essentially boils down the moral outrage of the individual judges. The Taylor sentencing judgment illustrates this point.





Indeed, the Judges start their assessment by claiming that “the Accused has been found responsible for aiding and abetting as well as planning some of the most heinous and brutal crimes recorded in human history” (§70). They then go on to describe the suffering of the victims, both physically and psychologically, stating that “their suffering will be life-long” (§72) that the effects on “society as a whole” are “devastating” and that many Sierra Leoneans, victims of the crimes, were “no longer productive members of society” (§74).

This is all very true, but, not too sound cold-hearted, should these elements be factors in sentencing? Again, the whole rationalebehind the creation of international tribunals is to address crimes which have these consequences. International crimes usually target vulnerable populations, are generally widespread and affect a society as a whole. But once these tribunals exist and function, the gravity of the crimes that justified their creation should, to a large extent, take a backseat in the daily work of the institution and the fact that “the Trial Chamber witnessed many survivors weeping as they testified, a decade after the end of the conflict” (§71) is, to put it bluntly, irrelevant. Of course, international tribunals operate as an element of post-conflict social reconstruction, but it does not mean that this transforms international judges in assessors of whether the crimes are the most heinous in human history or on the long-term effects on society as a whole. All international crimes are heinous and leave a mark on human history. All international crimes cause great suffering to their victims. That this suffering has been increasingly acknowledged is certainly a good thing, but I think that international criminal justice, as it gains in maturity, now needs less hyberbolic victim-oriented rhetoric, not more.

  • The relationship between individual responsibility and State responsibility
Beyond that, one sees here the difficulty of applying a traditional criminal law approach, with individual responsibility, to situations which are essentially collective, both in their consequences and their perpetration.

In relation to that, I was puzzled by one paragraph of the sentencing judgment relating to the extraterritoriality of the crimes, which the Trial Chamber apparently took into account as an aggravating factor (§27). What is striking is that the Chamber did not approach this from a factual point of view, i.e Charles Taylor being in Liberia took part in crimes being committed in Sierra Leone, a neighboring State. The Trial Chamber chose to approach this from an international law perspective, linking this with the principle of non-intervention, which, it recalls, is a customary law rule established by the ICJ in the Nicaragua case. The Judges consider that “while these provisions of customary law govern conduct between States, the Trial Chamber considers that the violation of this principle by a Head of State individually engaging in criminal conduct can be taken into account as an aggravating factor” (§27).

This is the first time I see this in a judgment of an international criminal tribunal. The sentencing judgment does not reference any other case as support for its approach, and a quick search in the ICTY database has come up with nothing. Essentially, the SCSL has pronounced itself on the international responsibility of Liberia, acting through its head of State. While one can doubt the adequacy of including such a paragraph in the first place, it would have deserved a longer development than this ambiguous sentence on a principle that does not bind individuals, but the violation of which by the said individuals can be taken into account nonetheless, which is, as it stands, certainly a peculiar statement in terms of legal reasoning.

The paragraph does however have the benefit of raising the issue of the link between individual responsibility and the collective (State) dimension of international crimes. This is a regular feature of debates in international criminal law, whether in relation to the common plan or policy requirement for genocide, the State or organizational policy for crimes against humanity, or the explicit recognition in the definition of aggression that you need a State act before prosecuting an individual for the crime. While it is beyond the scope of this brief commentary to address this adequately, it begs the eternal question that should never be forgotten when discussing the philosophy of international criminal law: when does the organizational requirement for the commission of an international crime actually negate the relevancy of attributing individual criminal responsibility for that act?

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Posted in gravity, scsl, sentencing, taylor

Comments on Lubanga Judgment (Part 3): the armed conflict, the elements of the crime and a dissent against the dissent

Posted on March 15, 2012 | 1 comment
This post continues the series of comments of the Lubanga verdict started here and here. In this post, I consider the nature of the armed conflict and the elements of the crime of enlisting, conscripting and using children in actively participating in hostilities. This will be an opportunity to critically asses Judge Odio Benito’s dissent.

  • The Nature of the Armed Conflict
At the outset, it should be pointed out that this is a generally irrelevant point. Indeed, I believe that the drafters of the ICC Statute, by maintaining the strict dichotomy between international and non-international armed conflicts in the drafting of Article 8 in relation to conduct that is criminalized in both cases forgot that international criminal law is not international humanitarian law, despite their obvious conceptual kinship. The distinction should have only been maintained for conduct that is criminalized only in one of them (generally international armed conflict). 
The fact remains that this distinction remains in the Statute and it was therefore necessary to define the nature of the armed conflict because it technically leads to different crimes being prosecuted: 8(2)(b)(xxvi) for an international armed conflict and 8(2)(e)(vii) for a non-international armed conflict.

Initially, the Prosecutor had charged the crimes under a NIAC. The Pre-Trial Chamber had used (abused) its power under Regulation 55 of the Court to change this legal qualification, considering that for a period of the indictment, it was an IAC (this is not the place to discuss Regulation 55 in detail, but on its illegality and abuse, including in the Lubanga trial, cf. my article on the issue). Now, the Chamber re-used Regulation 55 to say that, in fact, it was a NIAC all along. it confirms that several armed conflicts of different nature can co-exist at the same time and that you have to carefully identify which is the relevant one for the purposes of the trial. It this case, any international aspect (most notably the presence of Uganda and Rwanda) was not deemed to make the armed conflict between the Government and Lubanga’s armed group international. Moreover, the Chamber also confirms that the requirement of “control over part of the territory” from the armed group present in APII, is not in the ICC Statute and need not be verified for a NIAC to exist.
  • Elements of the crime of enlisting, conscripting and using children to participate actively in the hostilities
In relation to the enlisting and conscription of child soldiers, the Chamber, while pointing out the semantic distinction between voluntarily joining the armed forced (enlisting) and involuntarily joining the armed forces (conscription), decided to consider them both together. 
The more problematic issue was the question of the meaning of “participate actively in the hostilities”. In line with some SCSL case-law, this was deemed to cover not just combat activities, but any support activities that might expose the child to danger as a potential target (§628). 
The real question was whether sexual violence should be considered in this context. You will recall the 2009 fiasco of the legal recharacterisation of facts on which I commented on here and here, where the trial chamber (with a strong dissent from Judge Fulford) tried to get sexual crimes in through the back door, using their power under Regulation 55, before being reversed by the Appeals Chamber. In application of this Appeals decision, the judgment confirms that evidence pertaining to sexual crimes could not be considered because it had not been contained at the confirmation stage. Interestingly, the Trial Chamber does not take a position on whether sexual violence is actually contained in the definition of active participation in the hostilities.

  • Judge Odio Benito’s Dissent
This point is however addressed in Judge Odio Benito’s dissent. It seems that no international judgment today is worth anything without a dissent from a Latin American judge with a human rights activist agenda. The ICJ has Cancado Trindade and the ICC apparently now has Odio Benito. In a mercifully short dissent (Judge Trindade is not that graceful in his dissents that are sometimes twice the size of the actual ICJ judgment), the judge from Costa Rica plays the usual tune meant to strike a chord of shame in the hearts of the cynical positivists that some of us are. She refers to the now traditional tool of natural lawyers (a contradiction in terms, maybe?) who advance in the guise of common sense positivists, namely the “object and purpose” of the Statute, and says that the Chamber, in refusing to decide whether sexual violence is part of the definition, is “a step back in the progressive development of international law” (again, the classical rhetoric of progress, which makes any person who might resist a vile reactionary). She concludes her opening plea with the following grand finale (§8 of the dissent): 

I deem that the Majority of the Chamber address only one purpose of the ICC trial proceedings: to decide on the guilt or innocence of an accused person. However, ICC trial proceedings should also attend to the harm suffered by the victims as a result of the crimes within the jurisdiction of the Court. It becomes irrelevant, therefore, if the prosecutor submitted the charges as separate crimes or rightfully including them as embedded in the crimes of which Mr. Lubanga is accused. The harm suffered by victims is not only reserved for reparations proceedings, but should be a fundamental aspect of the Chamber’s evaluation of the crimes committed.

Needless to say that I strongly disagree with Judge Odio Benito. How can an ICC judge say that it is “irrelevant” what and how the Prosecutor charges? Moreover, I failed to identify when the ICC became a counseling service for victims. More importantly, it is this kind of grandiloquent statement that creates the false expectations among the victims that the ICC is indeed there to have this restorative and psychological role. Like many people, Judge Odio Benito, with all her good feelings, confuses the function of an institution and possible positive consequences of the exercise of this function. Of course an ICC trial can have an effect in the restorative process, by identifying the perpetrator, acknowledging the crimes and sometimes giving the victims a (limited) voice in the proceedings. But if the ICC is sold as having this function, it will necessarily fail in achieving this goal and disappoint expectations that should never have been created in the first place. Blaming the ICC, which is not institutionally designed to do this, for not doing enough for victims, is like blaming your dishwasher for not being able to cook your pasta. It doesn’t make sense. What you should do is blame the person who sold you the dishwasher, claiming that it could also heat up your pizza.
In any case, and to get back to the point, given Judge Odio Benito’s approach to law, it is unsurprising that she argues that sexual violence should be considered as an “active participation in the hostilities” because sex slaves provide “essential support” to the armed groups (§20 of the dissent) and sexual violence is often an intended consequence of illegal recruitment. This reasoning strikes me as odd when you consider that, for exactly the same objective of protecting civilians, IHL has always thrived to limit the scope of “direct participation in hostilities”. But now, the definition should be expanded to also protect civilians. This kind of flexibility (creativity) is typical of human rights activism that wants its cake and eat it. Also, the fact that there exists a discrete crime in that respect in the Statute which was voluntarily not charged by the Prosecutor is clearly irrelevant for the Judge. All this shows that the previous reproduced quote is not even close to what she thinks. She doesn’t think that a criminal trial should also consider the harm of victims, in addition to the legal dimension, as we might initially read it, but she is willing to bend the law to include that harm, in a perfect natural law tradition.

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First Judgment at the ICC: Some Random Thoughts on the Lubanga Verdict (part 2): the investigation

Posted on March 14, 2012 | 10 comments
Moving away from questions of form, as dealt with in my previous post, let’s look at certain issues of substance, which I will broadly consider in the order they are dealt with in the judgment. Because I want to keep my posts short(ish), I will comment in over different posts…
  • … but first, another comment on form and style
Having plowed through nearly 300 pages of the Judgment so far, there are already a number of parts that could have been seriously cut down. What is the point, for example, of recalling the case law on victim participation at the beginning? The same is true of the factual overview. International Judgments are not history books, and should not try to be history books. For one, they often get things wrong. More importantly, that is not their function. This overview should only be mentioned if it is relevant for the legal analysis (for the determination of the nature of the armed conflict, for example (more on this in Part 3)). 
On the related question of style, international judges have to stop acting as if they are giving a lecture to, depending on the section of the judgment, students/activists/fellow professionals/academics. They are Judges and are not meant and should not be expected to engage in academic debates unnecessarily. Two examples in what I’ve read so far (but I’m sure there are more). 
When discussing the nature of the armed conflict (again, more on the substance of this in Part 3 of this blog series), the Chamber refers to academic and jurisprudential discussions on the relevancy of the distinction between an international and a non-international armed conflict (§539). It then says, however, that: 

In the view of the Chamber, for the purposes of the present trial the international/non-international distinction is not only an established part of the international law of armed conflict, but more importantly it is enshrined in the relevant statutory provisions of the Rome Statute framework, which under Article 21 must be applied. The Chamber does not have the power to reformulate the Court’s statutory framework.

Of course I agree with this statement, but it shows how far we’ve gone in misunderstanding the role of the international criminal judiciary that these judges would feel the need to mention it explicitly in the judgment! It is a self-evident truth that is in-built in the role of these individuals as judges and should not have to be recalled in such a context.
A second example relates to the definition of the crime that was charged. The Statute clearly mentions the crime and the age of 15. There’s no discussion in that respect. Why therefore does the Chamber feel the need to explain the historical reasons for this prohibition and the fact that “children are particularly vulnerable” (§605-606)? This is neither a course in the history of international crimes nor a course in sociology and such discussions have no place in a Judgment. And the counter-argument of pedagogy, once again, is lost in my opinion, when these 2 pages are drowned in the 600 pages of the judgment as a whole.

  • The Investigation Process generally

The Judgment details at length the investigative process of the OTP (starting at §124). This part of the judgment covers a number of issues relating to the investigation, notably the difficulty in gathering evidence and the security issues that were faced by the investigators. The Court highlights the fact that the team was composed of a number of former NGO personnel, as well as people from International justice and human rights (§126). Interestingly, the Court relays the testimony of one witness questioning NGO reports. The following quote from William Pace reproduced at §130 is quite telling in that respect:

Investigators also sometimes find it difficult to corroborate information provided by human rights groups who are eager to call international attention to crises. The gap between the assessment of the human rights groups and the evidence was sort of a surprise,” says Mr Lavigne, a French magistrate and former police detective, who heads the Congo investigation team. Mr Pace considered that “human rights and humanitarian organizations are lousy criminal investigators. They are not producing forensic evidence that can be used by a prosecutor.

This finds an echo in the recent Mbarushimana confirmation of charges decision, where the Prosecutor was criticised for relying too much on NGO reports. It more generally raises the issue of the professional conflation that exists between the various “communities” of international justice, where people easily switch from one activity to the other (academia, tribunals, activism) and more problematic even, often act in all these capacities at once, sometimes abusing their professional function to promote an activist agenda. Such conflation can also be seen in the style of the judgment (see above), with certain parts reading more like a lecture to LLM students than a judicial decision.

The Judgment also highlights the “inconsistent requests” that were made to the investigators due to the absence of clear guidelines and changes in investigative choices from the OTP (§144).

  • The use of intermediaries in particular

The major question that arose in relation to the investigation was the use of certain intermediaries by the Prosecutor and their alleged misconduct. This had led to a series of decisions in the course of the trial (see here and here) where prosecutorial actions were severely criticized, even leading to a stay of proceedings.

The Trial Chamber revisits this issue in the Judgment. In fact, it takes up 130 pages (more than a fifth of the judgment!). It considers the background to the use of intermediaries and considers the credibility of the evidence that was gathered by a number of them, concluding in a number of instances that the evidence is not reliable due to the lack of professionalism or even dishonesty of certain intermediaries.

In the summary of the judgment, the judges issued a strong condemnation of the Prosecutor’s actions:

17.An issue that occupied the Chamber for a significant part of this trial concerned the use by the prosecution of local intermediaries in the DRC. The Chamber is of the view that the prosecution should not have delegated its investigative responsibilities to the intermediaries as analysed in the judgment, notwithstanding the extensive security difficulties that it faced. A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on.

18.The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chamber’s conclusions regarding the credibility and reliability of the alleged former child soldier witnesses, given their youth and likely exposure to conflict, they were vulnerable to manipulation.

This is all very nice, but the childish glee one gets from seeing the Prosecutor criticized once again has now lost its appeal through toothless repetition and been replaced with the frustration of nothing coming out of it. In particular, I don’t share Kevin’s enthusiasm, over at Opinio Juris, that this shows the judges “listened” to the Defense. Big deal. Time and again, in this instance as in a number of other occasions, the Prosecutor has received harsh rebukes from the Chambers in relation to such futile issues of his public statements, to more important issues relating to his investigations as well as egregious cases such as this one where, not only the Prosecutor showed, at best, gross negligence in his choice of intermediaries, but actually refused to comply with clear orders from the Court to release their names. A slap on the wrist is no longer sufficient. There exist tools in the Statute, such as Articles 70 and 71 that allow for the sanction of the Prosecutor for this kind of conduct and it is about time that they are used.

Moreover, back on the length of the judgment, I’m not quite sure, in light of this unfolding intermediary fiasco, why this was not dealt with months ago. If one of these people was entirely untrustworthy, it should have been considered when the whole issue arose and the stay of proceedings was decided. 20% of the final judgment on this issue is ridiculous.

All in all, this part of the judgment shows the difficulties of investigating such crimes in such circumstances. It also dramatically identifies the failures of the OTP, even in such circumstances. There is clearly a pattern here, when you add the two decisions declining to confirm charges that have occurred. People tend to blame the outgoing prosecutor for these failings. For me, as I’ve said before, the jury is still out and I am not willing to give an automatic blank check to the new Prosecutor, Fatou Bensouda, whatever appreciation I might have of her as an individual. Indeed, I have difficulty believing that such systemic and repeated errors are the sole responsibility of one man. I hope I am proven wrong on this.

(to be continued, stay tuned)

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First Judgment at the ICC: Some Random Thoughts on the Lubanga Verdict (part 1)

Posted on March 14, 2012 | 1 comment
(see Part 2 and Part 3)

Today, the ICC issued its first judgment in the Lubanga trial. He was found guilty of the war crime of conscripting and enlisting children under the age of 15 and using them to participate in hostilities. There are a number of things to write about it, and I’ll do so over the coming days, time allowing.

Before going into the substance of some of the issues considered, a few words on the conduct of the trial. There is no doubt that any ambition to have this trial as a sort of model trial, just as you have model houses that you can visit, evaporated long ago. This was meant to be a simple case.The Prosecutor decided to have a lengthy list of charges, a criticism often levelled at the prosecutiorial strategy at the ad hoc tribunals and essentially charged Lubanga with one crime relating to child soldiers. This should have been an easy case. However, as we all know, due to a combination of delays (prosecutorial misconduct, judicial activism on the requalification of charges, victim participation), the trial took way longer and went far less smoothly than expected.

This is the summary of the trial proceedings on the ICC website:

Over the course of 204 days of hearings, the Trial Chamber has delivered 275 written decisions and orders and 347 oral decisions. The Chamber heard 36 witnesses, including 3 experts, called by the Office of the Prosecutor, 24 witnesses called by the defence and 3 witnesses called by the legal representatives of the victims participating in the proceedings. The Chamber also called 4 experts. A total of 129 victims, represented by two teams of legal representatives and the Office of Public Counsel for Victims, were granted the right to participate in the trial. They have been authorised to present submissions and to examine witnesses on specific issues. The Prosecution submitted 368 items of evidence, the Defence 992, and the legal representatives of victims 13.

In comparison, in the Popovic et al. case at the ICTY, a case with 7 accused with counts including Genocide, Crimes against humanity and war crimes, 182 prosecution witnesses, around 130 defense witnesses several thousand exhibits, there were 425 trials days, a little more than twice the Lubanga trial.

The comparison need not stop here. The Popovic Judgment, again for 7 acussed and all the related evidence, is two volumes long and some 900 pages. The Lubanga Judgment, including the separate opinions is over 600 pages. For one accused, and essentially one count! One can only have nightmares at the thought of having to read the judgment in the Katanga and Chui case, with two accused and some 10 counts, or an hypothetical Bashir Judgment with its long list of charges… Something needs to be done about this judicial logorrhea. What is amazing is that I’ve heard some of the staff of these tribunals justify the length of judgments for reasons of pedagogy. Of course. It makes total sense that a layperson is more likely to read a 600 page judgment than a 200 page judgment…

And while we’re on form rather than substance, I just came accross the first press release from the OTP following the judgment. It welcomed the first verdict of the Court, of course. It says nothing of the fact that the OTP was publicly chastised for its negligence and sloppiness in the gathering of evidence and use of intermediaries, of course (more on this in subsequent posts). But what it mostly does is celebrate the fact that Angelina Jolie attended the hearing! The first trial at the ICC, the first Judgment, the first conviction, the recognition of the criminal activity of Lubanga and his armed group for thousands of victims, the controversy about not charging sexual crimes, the upcoming sentencing proceedings… and the angle that the OTP chooses for this first press release is the presence of Angelina Jolie… a watershed moment indeed…

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Some thoughts on what happened at the ASP of the ICC: change the policies before discussing people or budget

Posted on December 23, 2011 | 2 comments

The Assembly of State Parties just finished its 10th session in New York. The high point of this session was the selection of the next ICC Prosecutor, to replace Luis Moreno Ocampo, and the winner, unsurprisingly, was Fatou Besouda, the current Deputy Prosecutor. Another issue was the election of new judges and determination of the 2012 budget. At the end of this session, I wanted to share a few thoughts.

On the choice of Fatou Bensouda as prosecutor, I broadly share the enthusiasm of a number of commentators, such as Kevin Heller over at Opinio Juris, Mark Kersten at Justice in Conflict or Bill Schabas. In the few times I have met her, she has come across as thoughtful and pleasant, and seems to have a decidedly less “gritty” style than her soon-to-be-predecessor.
But I do have some lingering concerns. As I said when her name started floating around (see comments section here), I don’t think we can just brush under the carpet the fact that she has worked with Luis Moreno Ocampo for the past 8 years. He is certainly personally to blame for a number of errors of the OTP, most notably in terms of communication, but I cannot believe that he is alone responsible for all the blunders of his office. Under his mandate, 2 cases have not been confirmed by a Pre-Trial Chamber (Abu Garda, and more recently Mbarushimana) and the conduct of the OTP in the Lubanga trial should have led to the suspect’s release in a number of situations and possibly the removal or at least sanction of the prosecutor. I can’t imagine that Ocampo did not have some support from his office, including Bensouda, for a number of these disasters. In this sense, I’m not sure that continuity is such a good thing.
More generally, I’m not entirely convinced that the general rhetoric of having an African Prosecutor is convincing. I don’t see how the criticism of the ICC being an “African Court to Prosecute Africans” is addressed by the designation of Bensouda. This will just be an “African Court to Prosecute Africans by an African”… The real issue is not the nationality of the Prosecutor, it is the policies that are implemented. In this sense I perfectly agree with Bill Schabas, that the nomination of Bensouda can only go so far to mend the perceptions of the Court. Only a change in policy will make any real change in perceptions.

I also wanted to share a few thoughts in relation to the public outcry on the only marginal increase of the budget of the Court. These concerns are relayed here by Mark Kersten.
On the face of it, the 117 million euro budget that was requested by the Court does not seem unreasonable for a permanent international criminal tribunal that is currently involved in 7 countries, with a number of others on the waiting list. As a comparison, this is about the recent yearly budget of the ICTY, involved in only one country, and which is winding down its activities. Certainly, the CICC and Mark are right to express doubts at whether the Court will be able to perform in the future if the increase in activity is not followed by an increase in budget.
But this legitimate question must not prevent us from questioning the way the money is spent. There are some rather futile examples of misspending, such as a full page ad in the Economist. Equally, one could bicker about the salaries that are paid at the Court, which sometimes seem extravagant, especially to the humble university Professor that I am. But more fundamental questions should be raised in terms of priorities and mistakes. How much did the Mbarushimana and Abu Garda investigations cost, for such a poor result? How much has the poorly designed (and made worse by the judges) victim participation system cost the court in money and in time (and therefore in money)? Also, the Court complains that the UNSC is referring situations without contributing to the budget. I have a solution for that. Don’t take referrals from the UNSC anymore. For one, they are in some respect contrary to international law, but more pragmatically, doesn’t the Court have enough on its plate with State Parties, without delving into the affairs of non-State Parties? These are just a few policy considerations that need to be addressed in order to have a full and comprehensive discussion on the budget.

On a final note, I couldn’t help but react at Mark’s conclusion:

In the end, there is a grave danger that money determines who receives justice and who doesn’t; that funding defines the quality and extent of justice served. It would be a sad world to live in and one in which international criminal justice’s skeptics and cynics win.

I don’t know in what world my esteemed colleague has indeed been living in to make such a statement, but in the one I live in, this is already the case, and not just at international tribunals. We live in a worlds of limited means and ressources and there is always a limited budget for any institution, both nationally and internationally, and, in other words, never enough money. I think that one can say that without being labelled as a “cynic” or “skeptic”. That’s just the nature of things. More specifically, all the national examples of criminal systems are suffering from too many cases, where the exercise of discretion is necessarily also based on the question of limited means, and where release decisions from prison are for example based on them being too full, rather than on criminological reasons. And one criteria to discriminate one case from another, is gravity, which is either ignored or misapplied at the ICC. Again, for me, neither Lubanga (at least for these charges), nor Abu Garda, should have been prosecuted before the Court, irrespective of money.

In this sense, I would conclude in the same way as for the nomination of Fatou Bensouda: change the policies, in order to change anything. One can pour in as much money as one wants in the institution, if the policies are unsound, it won’t make a difference to the objectives of justice of the Court.

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Posted in ASP, budget, ICC, prosecutorial discretion