Imagine the following scenario:
Assume that the people of Libya and Syria are all represented by one individual each who is charged with requesting that the human rights violations and atrocities in their respective nations are investigated by the ICC. Since neither Syria nor Libya are members of the ICC, both of these representatives need to make their requests to the UN Security Council. Both representatives are sitting in the waiting room, preparing to make their case. It is decided that Libya will make its presentation to the Security Council first because their crisis occurred first and, well, everyone is itching to get rid of that embarrassing Gaddafi fellow. The representative makes his case and comes back into the waiting room with a big smile and says: “Success! Just got a resolution passed. The ICC’s going to investigate Libya!” At hearing these inspired words, the Syrian representative’s hopes rise. He thinks to himself: “if they refer crimes against humanity and war crimes in Libya to the ICC then they must refer the crimes in Syria too! After all, a crime against humanity is a crime against humanity is a crime against humanity.” The Syrian representative gets up and approaches the glass door to the Council. Right before he reaches it, however, a sign is flipped from “Open” to “Sorry, closed for business”. Furiously, the Syrian representative requests to know why he cannot give his presentation to the Council. Finally, someone takes him aside and informs him: “Look, they won’t tell you this to your face, but there’s no money to investigate crimes in Syria. All the money’s been spent.”
Of course, this story could never happen as I’ve described it. However, it conveys a key truth that is too rarely discussed: there is only so much money for justice at the ICC and it is running out.
The Council of Foreign Relations describes how the ICC is funded as follows:
“The ICC, as an independent body, is funded primarily by its member states. The contributions of each state are determined by the same method used by the UN, which roughly corresponds with a country’s income. Additional funding is provided by voluntary government contributions, international organizations, individuals, corporations, and other entities. The United Nations may provide funding if it is approved by the General Assembly and is related to a “situation” referred to the court by the Security Council.”
In neither of the two cases referred to ICC by the UN Security Council (Sudan in 2005 and Libya in 2011) did the Council provide funding, leaving it instead up to individual member states to cover the costs.
Further, key members of the governing body of the Court, the Assembly of States Parties (ASP), consisting of the member-states of the ICC, have been reluctant, to say the least, to expand the Court’s budget. With the exception of the Netherlands’ rate of inflation, the ICC’s budget is intended to have zero growth from year to year.
The problem, then, is rather simple: the number of investigations and cases in front of the Court has grown but the Court’s resources to investigate and prosecute those cases remain stagnant. The danger looms: the Court may only be able to respond to some cases on the basis that it only has money for some and not other crises. But is it not morally reprehensible that money is a limiting factor in who gets justice?
Budget issues aren’t particularly ‘sexy’ but if the Court cannot meet the demand for international criminal justice, it is hard to see how it can remain a legitimate international institution. As its critics often point out, the Court is not cheap. In order to function effectively, the Court must pay for witness protection and travel, defense and prosecution counsel, field-based investigations, not to mention the arduously long hearings and architecturally opulent new headquarters. None of these things come cheap and for the Court to achieve some degree of justice, as Jonathan O’Donohue points out:
“It is unrealistic to expect the ICC to grow in response to the demands of the international community and at the same time demand that the associated spending be absorbed without degrading the quality of the Court’s work.”
O’Donohue is Legal Adviser for Amnesty International’s International Justice Project and leader of the Coalition for the International Criminal Court’s team of NGOs on budget and finance.
The ICC is already hampered by selectivity issues: it can only investigate those “most responsible” for international crimes; it focuses exclusively on individual guilt, neglecting critical collective and social factors of conflict and crime; it is only able to investigate crimes after July 1, 2002; and it can only investigate those situations under its jurisdiction or which are referred to it by the Security Council. If its funding does not expand, budgetary capacity will be added to this list. Worrying for the ICC’s advocates is that the fault for this new, financially driven selectivity will be attributed to the ICC rather than the international community which refuses to fund the Court adequately.
A particularly cynical view of this problem might suggest that some members of the international community are actively seeking to undermine the ICC by putting it in an untenable financial position. Perhaps the Security Council is throwing the Court to the wolves by referring cases to it without much in the ways of political or financial support for it. Similarly, perhaps disgruntled and financially constrained ASP member-states are doing the same. Whether intentional or not, both the Security Council and the ASP member states who refuse to expand the Court’s budget are effectively undermining the ICC’s legitimacy and effectiveness.
The Convenor of the CICC, William Pace, has picked up on this issue in a recent press release:
“We are seriously concerned that governments, including members of the UN Security Council, have on one hand increasingly engaged the Court as a major actor in peace and security management, for example in referring a situation like Libya, and on the other hand are ready to make decisions that could undermine the Court’s ability to deliver meaningful justice.”
There is also another political danger of a financially strapped Court: that states voluntarily provide the Court with large sums of money and gain a degree of influence or control of elements of the ICC’s work. This might mean getting first consideration of particular jobs at the Court. But, more worryingly, it might also be favourable investigations of only one side of a specific conflict, something the ICC has already been hampered by. It is worth considering a domestic analogy in this context. In democratic, rule of law abiding states, Supreme Court judges are often the highest paid civil servants in order to guarantee that they have no incentive to be swayed by financial benefits. Similarly, the ICC must have sufficient funds to guarantee that influencing its work through large donations is not even a theoretical possibility.
While the increase in demand for justice across the world, particularly in ‘Arab Spring’ states, has been hailed as historic by many, the supply may yet come to disappoint even the most fervent supporters of the ICC.
The reality is that the effects of funding – or lack thereof – of the ICC is a largely unexplored area. While it is sure to become an issue in the near future, international NGOs, groups, academics and, yes, bloggers, have failed to raise awareness about the potential for selectivity on the basis of funding. Instead of building understanding and preventing this potential financial crisis, we are instead reacting to it. Regardless, drumming up awareness is better done late than never.
The lofty and aspirational rhetoric of the men and women responsible for making the ICC a reality vehemently declared that the peoples of the world are demanding justice and that now is the time to serve this demand with a permanent court. It would be not just a shame and a blemish on the Court’s record but a fundamental injustice if the supply of international criminal justice could not meet its demand because of money.