The ICC, Funding, and Bensouda: A Response from, and to, Dov Jacobs

Fatou Bensouda ICC

Bensouda and Moreno-Ocampo (Photo: AP)

Dov Jacobs, one of the sharpest and most thoughtful commentators on issues of international criminal law and justice, has a few new posts up at his must-read blog, Spreading the Jam. In his latest piece, Dov considers and takes aim at a number of issues concerning the Assembly of States Parties meetings this past week in New York.

While the general sentiment towards Fatou Bensouda, recently elected as the ICC’s next top Prosecutor, has been overwhelmingly positive, Dov picks at an uncomfortable possibility: Bensouda’s complicity in the gaffes and controversies orchestrated by Luis Moreno-Ocampo during his tenure as the ICC’s top Prosecutor:

“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.”

It’s an interesting point and may, indeed, indicate a contradiction between the disdain held by many for Moreno-Ocampo and the support many have expressed for his number-two, Bensouda. At this point, however, most – including myself – appear to be willing to give Bensouda the benefit of the doubt and the space to define her tenure outside of the looming shadow of Moreno-Ocampo.

Perhaps Dov’s most important claim is in the second section of his post, where he considers the ICC’s new budget, widely viewed as a disappointment with potentially grave consequences for the delivery and quality of international criminal justice. What matters just as much – if not more – than the actual budget is how the Court uses the money at its disposal:

“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.”

Indeed, missing from most, if not every, public analysis of the Court’s budget has been a discussion of where the Court has blundered in spending. It may be that the ICC will be constrained by the new budget, especially given its increased case-load, but perhaps – and just perhaps – this will provide an incentive for prudent and effective spending without sacrificing the quality of justice served by the Court.

(Photo: The Mirror)

Lastly, Dov takes aim at my own conclusion about the ICC’s budget negotiations, namely that a constrained budget risks creating a situation where money determines the quality and extent of justice served by the ICC:

“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.”

Generally, I agree. Certainly the resources available to institutions shape their work. However, it remains unclear to what extent past budgets of the ICC have affected the Court’s decisions to open investigations and hold trials. Importantly, prior to this year, I had never heard about the potential for a financial crisis within the ICC. Further, Dov’s point does not change the fact that the extent to which funding determines the justice served by the ICC will be aggravated by tighter budgetary constraints on the Court. This isn’t to say more money equals better justice. But surely sound policy and ample financial room to secure additional cases while continuing ongoing trials is preferred to a culture of uncertainty within the Court about whether there is enough money for another investigation or trial. In short, funding obviously shapes the work of the ICC and while the Court may need to rethink how it uses the funding it has, the potential castration of its financial capacity to open new cases and conduct trials remains a valid concern.

In the end, I largely agree with Dov but, more importantly, I believe that his points shed light on vital issues that remain rarely and poorly considered. One of the most positive aspects of the ICC’s emergence as a viable institution in international politics has been the unprecedented level of scrutiny aimed at its work. There is always the danger that die-hard ICC-o-philes take such criticism as an attempt to undermine the Court and its endeavours to end impunity for international crimes. But channeled properly, such critical engagement with the Court’s practices, politics and policies can only help make a good project better.

Dov’s full post can be read here – and I urge you to do so.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Assembly of States Parties, Fatou Bensouda, Funding, ICC Prosecutor, International Criminal Court (ICC), Justice. Bookmark the permalink.

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