II. Monetary Issues: Ability of the Court to Obtain Access to Finances Through Funding in General

Limitations to the Court’s ability to obtain funding in general has obvious ramifications for available financial resources that would be integral to the Court’s outreach program. This segment will discuss the processes through which the Court receives its funding and the current limitations the Court endures as a result of those processes.

Article 113 of the Rome Statute dictates: “Except as otherwise specifically provided, all financial matters related to the Court… shall be governed by this statute and the Financial Regulations and Rules adopted by the Assembly of States Parties.”4 Both the Court and the Assembly are financed from assessed contributions of State Parties, which, as stipulated by the Rome Statute, are predicated on the scale adopted by the United Nations for its regular budget.5 The fact that the ICC’s ability to acquire contributions from its members is directly tied to the process of a disparate organization creates certain difficulty for the Court, which is further discussed later within this comment. The Rome Statute permits the ICC to secure additional funding from the United Nations itself, but that process entails additional limitations: funds to the ICC are only approved by the General Assembly of the UN, in particular to relation to the expenses occurred due to referrals by the Security Council.6^, 7 This language creates an unclear understanding as to the availability of UN funding to the ICC. Should the statute be construed to permit funding only as it pertains to UN Security Council referrals, the margin for additional UN funding would consequently be a thin one. Thus far, the UN Security Council has made only two referrals of cases to the ICC. This paints a somewhat bleak picture with regard to capacity of the Court to secure additional funding through contributions from the UN. Additionally, voluntary contributions to the Court are permitted, in accordance with the relevant criteria adopted by the Assembly of States Parties.8 Not only are voluntary contributions subject to limiting criteria, but they have also not cumulated to much since the creation of the Court. Thus, ultimately, the Court’s ability to secure funding is seriously limited to the funding procedures the General Assembly at the UN decides to adopt.

Given that the Rome Statute hinges the Court’s ability to raise funds on the current UN Assessed Contribution Scale, an evaluation of the UN’s procedure for securing funding through the General Assembly is called for. The ICC is distinct from other international organizations in that its governing statute does not mandate a pre-defined scale of assessment in its document. Rather, it affords flexibility based on a more general model that the United Nations adopts: “The contributions of States Parties shall be assessed in accordance with an agreed scale of assessment, based on the scale adopted by the United Nations for its regular budget and adjusted in accordance with the principles on which that scale is based.”9

The assessment scale for the United Nations is predicated on a “Capacity to Pay” concept. Capacity to pay is often determined by gross national product, adjusted by external debt and population, which is then converted to US dollars, adjusted and expressed as a proportionate share of the total income of UN members. However, it is important to consider differences in membership between the UN General Assembly and the States Parties to the Rome Statute with regard to availability of funds to contribute. Forty-one members of the United Nations are not parties to the ICC, including several of the wealthiest countries in the world. The ICC’s ability to raise funds is therefore obviously hindered by the noted absence of the United States, China, and Israel as signatories to the Rome Statute.

Furthermore, there are important structural concerns and enforcement challenges that challenge the Court’s ability to secure funds that could be utilized for outreach purposes. The fact that ICC state contribution assessments are by stipulation pegged to current UN contribution statistics prevents the Court from utilizing an independent, non-fluctuating mode of securing contributions from States Parties. Given that the ICC assessment scale is based on an inherently political organization, aspects of the UN scale will without doubt be subject to political compromise and contexts as they relate to the General Assembly at the UN. For example, the General Assembly determines arbitrary maximum and minimum contributory levels for member states. Consequently, States Parties to the ICC are subject to those same limitations. With particular regard to limitations placed on maximum contribution amounts, the ICC’s ability to secure funding from its members is fixed; the Rome Statute does not provide language that would authorize the Assembly of States Parties at the ICC to increase maximum contribution levels if they conflicted with the assessment scale adopted by the UN.

An additional hurdle to the ICC’s general acquisition of funds entails a relatively lenient enforcement mechanism with regard to State Party contributions. Issues with lack of enforcement of State Party contributions are reflected in challenges that faced the United Nations and other International Tribunals: by April 1999, unpaid assessments to the ICTY and ICTR totaled over $73.2 million dollars, with only 24 out of the 188 UN members contributing their required assessment.10 This huge lack of payment does not bode well for the ICC, especially with regard to the Rome Statute’s provision that addresses defaulting on payments: “A State Party which is in arrears in the payment if its financial contributions towards the costs of the Court shall have no vote in the Assembly… if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years… The Assembly may, nevertheless, permit such a party to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the State Party.”11 This statute creates substantially flexible room for States Parties to default on their payments, with a soft, if any, punishment regime for failure to comply with the obligatory contributions. If the ICC’s funding mechanism was not dependent on the UN’s assessment procedure and policy towards default (Article 19 of the UN Charter), the ICC would be able to implement more stringent mechanisms that would ensure greater acquisition of funding by members, and by extension, greater funding that could be directed towards meeting outreach objectives.

Ultimately, both the ICC’s dependency on the UN General Assembly’s assessment scale and the limitations the ICC faces in enforcing a more stringent policy toward payment default create a complicated and unstructured process through which the Court relies on to harness funding. This lack of independence and dependency on the policy of a separate international organization directly serves to limit the acquisition of funds that could be directed towards critical outreach objectives.

III. Outreach as a Budget Priority

While the Court’s limited capacity to secure general funding creates an initial challenge to establishing an effective outreach regime, the ICC’s consistently low prioritization of outreach as an objective within budgetary policy further serves to limit access to funds that would be specifically tailored towards imperative outreach objectives. The Coalition for the International Criminal Court authored a report on the ICC’s Proposed Budget for 2014, which highlighted that as far as the budget is concerned, outreach is seen as less a pressing objective than other functions of the Court.12

The ICC’s proposed budget for 2014 requests 126.07 million Euros, with the majority of the increases directed towards the OTP. The budget allocates “significant resources allocated to ensure that the OTP is able to proceed promptly with cases when suspects are surrendered to the ICC.”13 The fact that the OTP decided to change two of its active investigations into residual investigations (which entail only the preservation of evidence as opposed to further pursuing an investigation) underscores the clear need for additional resources. Specifically, those resources are needed for additional resources to pursue investigations and prosecutions, which are both perceived as a crucial and integral function of the Court. So long as funding continues to be limited, this dynamic will not serve to further improve outreach. So long as functions within the Office of the Prosecutor remain a top priority, which is certainly a legitimate argument, specific outreach objectives will be neglected. One example in particular highlights the dynamic that the Office of the Prosecutor and its responsibilities remains a top priority for funding allocation.

The 2014 proposed budget indicates a 35% increase in the Victims and Witnesses Unit within the OTP, which reflects the huge expansion of new witnesses as more cases are investigated and opened.14 As the OTP continues to launch new investigations, the amount of evidence gathering and witness interviewing will continue to grow at an even quicker pace. This rapid growth as the OTP’s caseload increases will without doubt require substantial funding. Ultimately, the ICC as an institution in general is largely associated with bringing justice towards international criminals. In order to accomplish such an objective, the Court’s Office of the Prosecutor needs resources to do so. Although an effective outreach regime serves a very important purpose and would over time greatly increase the efficiency of the Court, so long as it remains to be considered a secondary, as opposed to primary focus of the ICC, the majority of funding will be dedicated towards the OTP.

The establishment of field offices in situation countries serves as a critical mechanism for the Court to implement and facilitate outreach with local communities. However, the 2014 budget proposal does not indicate that the maintenance and establishment of field offices possess the most pressing need for funding. No funds are currently proposed to be directed towards the establishment of a field office in Mali, in spite of the fact that this will create an enormous gap in distance between the field office and more remote areas that correspond to reports of crimes.15 Lack of a field office and outreach in concerned communities in situation countries thus directly affects the efficiency and efficacy of the OTP’s ability to pursue justice. While outreach objectives clearly have tangible ramifications for the Court to function properly, these objectives are still seen as secondary in nature when compared to the more immediate nature of tasks typically associated within the Office of the Prosecutor.

While the budget report does reflect an “initiative” on behalf of the Public Information Dissemination Unit, more financial assistance is directed towards the Office of the Prosecutor, with particular regard to investigative support and augmenting the participation of victims and witnesses. Only until outreach is considered an immediate and tangible objective on par with investigatory and prosecutorial functions of the Court, other organs of the Court will remain the primary beneficiaries of the limited funding available to the Court.16

IV. Concluding Remarks

The fact that the Outreach Unit was not even established until 5 years after the Court was established reflects the relatively lower priority designated to establishing an effective outreach regime at the ICC through increased funding. Furthermore, the fact that outreach efforts are considered to have a less tangible effect than more efficient results with regard to investigative and evidentiary funding hinders consideration of outreach as a necessary function of the Court. Outreach remains without doubt a crucial objective of the ICC and dedicating more funds to it now may well serve to cut more expensive costs in the future through improvements in efficiency and effectiveness of investigations. Additionally, any misinformation that is instigated against the Court will require a well-managed outreach regime to be solved. Clearly, issues that are inevitable due to lack of outreach will serve to be costly to the Court in the long run if funding is not dedicated towards tackling those issues now. Ultimately, so long as outreach remains a low budgetary priority and the ICC’s funding system at large remains complicated and potentially unenforceable, the Court’s ability to refine and effectively implement outreach will be curtailed.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   International Criminal Court, Assembly of State Parties, Strategic Plan for Outreach of the International Criminal Court, ICC-ASP/5/12 (Sep. 29, 2006), available online. ↩

2. 2.

   Id. at 3. See also International Bar Association, Beyond the Hague: Forging linkages between the International Criminal Court and Key Jurisdictions (Sep. 2008) at 16, available online (addresses numerous outreach issues at the ICC):

   [F]eedback from the field highlights that misperceptions and misinformation on the Court’s work are persistent in Uganda, DRC and Chad. ↩

3. 3.

   There tends to be overlap in outreach function between the Office of the Prosecutor (OTP), the Public Information and Documentation Section (PIDS), as well as the Victim’s Participation and Reparation Section (VPRS). In his article on the construction of the ICC, Schiff discusses the “fractious nature of the Court’s Structure,” such that the fragmentation between the organs of the Court with regard to outreach becomes akin to “battling a split personality.” See Benjamin N. Schiff, Building the International Criminal Court (Cambridge University Press, 2008). ↩

4. 4.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17 1998, UN Doc. A/CONF.183/9 [hereinafter Rome Statute] at Art. 113. ↩

5. 5.

   Rome Statute, supra note 4, at Art. 115. ↩

6. 6.

   Id. ↩

7. 7.

   An informative report from the Project on International Courts and Tribunals explains that this policy was the result of a compromise in Rome; Although many signatories to the Rome Statute wanted security of funding directly from the United Nations, other signatories vouched for the independence of the Court, and that “exclusive or primary funding by the UN, could raise serious issues of state and sovereignty and equity, as a potentially large number of UN members would be funding an organization to which they did not belong.” See Cesare Romano & Thordis Ingadottir, The Financing of the International Criminal Court, Project on International Courts and Tribunals (2000), available online. ↩

8. 8.

   Rome Statute, supra note 4, at Arts. 116, 117. ↩

9. 9.

   Rome Statute, supra note 4, at Art. 17. ↩

10. 10.

    Romano & Ingadottir, supra note 7. ↩

11. 11.

    Rome Statute, supra note 4, at Art. 112(8). ↩

12. 12.

    The report “strongly oppose any attempts to offset the proposed increase in funding of OTP’s work by cutting resources required for other areas of its work.” Coalition for the International Criminal Court, Budget and Finance Team, Comments on the Proposed Programme Budget for 2014 of the International Criminal Court and other matters (Sep. 5, 2013) at 2, available online. ↩

13. 13.

    Id., at pg. 2. ↩

14. 14.

    Id., at pg. 3. ↩

15. 15.

    Id. ↩

16. 16.

    See, e.g., Beyond the Hague, supra note 2, at 16:

    [D]ue to budget constraints the audio-visual products are currently available only in French, which impedes the ability of the Court to reach segments of the affected communities in the DRC who speak Lingala, Suali or Sango, but not French. ↩