Final thoughts from the ASP – Austerity and the ICC

Teddy Nicholson gives his final thoughts on the Assembly of the States Parties to the Rome Statute of the International Criminal Court. His focus is on the controversial negotiations which resulted in a smaller than hoped for budget for the Court, despite an ever-growing caseload. For other analyses of this under-explored subject, see here, here and here.   

ICC Prosecutor

New ICC Prosecutor, Fatou Bensouda, is greeted by the CICC's Bill Pace (Photo: CICC)

The 10th Session of the Assembly of States Parties is now over, the debates are finished, the resolutions are adopted and the receptions and parties have come to an end. It has been an incredibly hectic few weeks, culminating in some dramatic negotiations with high stakes.

My last post on the ASP explained the incredible complexity of the process by which judges are elected. Those elections in the end ran to fifteen rounds of voting with the first three judges elected in the initial two rounds, and then about ten rounds with no result followed by the final three elected in the 12th, 13th and 15th rounds. For those keeping track, the six new judges are from Trinidad and Tobago, Philippines, Czech Republic, Dominican Republic, UK and Nigeria.

The biggest consequence of how long these elections ran, however, was that the negotiations on the other big issues were significantly delayed. The work on the ICC budget became by far the most difficult and politically contentious debate, and it was squeezed into the space of four days – Friday, Saturday, Monday and Tuesday, running late into the night on most of those days.

The battle-lines were effectively drawn between a group of five states, Japan, France, UK, Germany, Italy (the five biggest contributors to the ICC) and everyone else. Those five had prepared a paper detailing their proposal for a ‘zero nominal growth’ budget, meaning the same number as the 2011 budget.

The main problem with this, as many states pointed out in official and informal meetings, was that the work of the ICC is expanding fast. A year ago the ICC had five country situations on its agenda, today it has seven – a 40% increase in one year. This means that holding the budget at 2011 levels was extremely unpopular both as far as the Court and most states were concerned.

ICC Prosecutor Luis Moreno-Ocampo at a UN Security Council briefing on the ICC's investigation in Libya (Photo: Mario Tama/Getty)

Mark has previously discussed the budget issues facing the Court, pointing out accurately that there is nothing just about limiting the activities of the Court according to financial concerns, and this was a common argument in New York. The Committee on Budget and Finance (CBF) whose job it is to analyse the Court’s budget proposal, stated bluntly in their report this year:

“Simply put, the Court is reaching the point when the expectations on the type and level of activities and on the level of resources may be diverging.”

However, we live in the real world, and the five biggest contributors were all arguing that these are dire financial times and that when they are all going through austerity measures at home, they can’t justify giving more money to the Court than last year.

The Court proposed an initial budget for 2012 of €123 million, which was cut down by the CBF to €114m (and accepted by the Court), and then the real fight began by those five states to pull it down closer to the €103.5m budget the ICC had in 2011.

Pretty much every single aspect of the Court’s activity was scrutinised, from salary increase policies to travel allowances for staff to legal aid and many other matters. Talks went until the small hours of the morning on Monday night and then through Tuesday with no deal made, passing the deadline set by the chair of the working group.

At that point, the President of the Assembly of States Parties stepped in to make a compromise proposal. Her intervention at the key point late on Tuesday galvanised states into making a deal at €111m which is the budget the Court will have for 2012.

ICC Prosecuto Luis Moreno-Ocampo with former UN Secretary General Kofi Annan (and Kenya's Prime Minister Odinga)

Depending on who you are and how you look at it, this is almost certainly, politically speaking, bad news. For the UK and others who are going through the harshest austerity measures, this is a 7.7% increase on last year, and therefore bad. For everyone else, this is a 7.7% increase when the Court’s work has gone up by 40% which effectively amounts to a substantial budget cut. Let the political framing of it begin.

The issue hiding behind all of this, though, is that the Security Council has referred two out of the seven countries before the ICC to the Court. In both resolutions 1593 on Sudan and 1970 on Libya, a clause has been added that says that the states parties to the Rome Statute will pay for these, not the UN. Though Article 115(b) of the Rome Statute anticipates this and says that the UN should pay for these referrals.

Since US domestic legislation prohibits any funds going to the ICC, this is unlikely to change, but it is a huge reason for the budget crisis at the Court now. Liechtenstein put forward a proposal, that was then softened, that would ask the Court to come up with a way that the UN could transfer money to the Court if it decided to – right now there is no technical means in existence for that to happen. This is a small step towards dealing with a huge problem for the finances of the Court.

At the end of the day, though, the word that almost every state used when describing the final budget deal was ‘satisfactory’. This is probably just about accurate – no one likes the deal, and the process was messy, but it’s worth bearing in mind that the Court proposed a budget that was instantly cut by nearly €9m without much complaint – another €3m seems like something they will be able to deal with. If the activity of the court keeps expanding in the way that it has been this year, then we’ll have another fight on our hands in December 2012, but for now we can watch how the Court does, and my guess is that the finances will end up being ‘satisfactory’.

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, Funding, International Criminal Court (ICC), UN Security Council. Bookmark the permalink.

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