Jump to Content Jump to Main Navigation

Part I Context, Challenges, and Constraints, 5 How Much Money Does the ICC Need?

Stuart Ford

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 26 October 2020

Subject(s):
Economic sanctions — NGOs (Non-Governmental Organizations)

(p. 84) How Much Money Does the ICC Need?

5.1  Introduction

At a high level, the process by which the ICC is funded is quite similar to how the United Nations is funded.1 The states who are parties to the Rome Statute collectively make up the ASP.2 In the analogy with the United Nations budget process, the ASP occupies the same role as the General Assembly: the budget of the Court is set by the ASP3 and funded by dues paid by the States Parties.4 The money is collected by the Court and distributed to the various organs according to the budget.5

The process of deciding the budget for any given year begins with a proposed budget offered by the Court.6 A body of independent finance experts created by the ASP called the Committee on Budget and Finance (CBF)7 then reviews the proposed budget and compiles a report for the ASP that contains recommended changes to the Court’s proposed budget. The ASP considers the proposed budget and the CBF report and then decides on the budget for the upcoming year during its annual meeting. The ASP has tended to follow the recommendations in the CBF report, but it is not required to do so.8 While there is much more that could be said about the budget process, this chapter (p. 85) does not provide an exhaustive description of it because Jonathan O’Donohue has already done so in a series of articles about the ICC’s budgets.9

This chapter will focus on the question of whether the ICC is adequately funded. The global financial crisis of 2008 and its continuing fallout have had a noticeable effect on ICC budget discussions in recent years. A number of developed states have pushed to freeze the ICC’s budget in response to their ongoing fiscal problems, which would result in a so-called ‘zero growth’ budget. The Court, some states, and many civil society organizations have opposed a freeze. In recent years, this issue has been the central one affecting the budget process, and it has created tension between the Court, the members of the ASP, and various civil society organizations. At its heart, it is a dispute about how much money the ICC needs and whether the ICC spends the money it has efficiently.

This chapter will look at how much the Court has spent over its lifetime and how that money has been spent on different functions. It will also take a closer look at the constituencies that have tried to affect the budget process and the debates that have surrounded the budget, including calls for a budget freeze. Most importantly, it will try to determine whether the Court’s current budget is sufficient for it to accomplish its goals. It does this primarily by comparing the ICC’s budget and workload to the budget and workload of another similar court: the ICTY.

The results are somewhat ambiguous. The ICTY does appear to have been more efficient than the ICC, but that conclusion is tempered by the fact that the main difference between the two—the cost of staff—is not directly within the control of the ICC. In addition, there are ways in which the ICC and ICTY are different that may partially explain the remaining difference, like the emphasis on victim participation and the existence of admissibility challenges at the ICC. Nevertheless, it does appear that the ICTY conducted trials more efficiently than the ICC, which suggests that there may still be room for further improvements at the ICC.

5.2  How much does the ICC Cost and how is that Money Spent?

Between 2002 and 2013 the ICC spent slightly more than €1 billion.10 While spending growth was rapid in the early years, there has been relatively little growth in recent years. In fact, once adjusted for inflation, there have been two years (2008 and (p. 86) 2011) when the ICC’s budget shrank in real terms. The ICC’s inflation-adjusted spending is shown in Figure 5.1.

Figure 5.1  ICC’s Inflation-Adjusted Spending

One thing that is immediately clear is that the ICC’s spending trajectory does not look like that of the other international criminal tribunals that have been created in recent decades.11 At the ICTY, the ICTR, the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Special Court for Sierra Leone (SCSL), spending increases sharply in the early years, peaks, and then begins to slowly fall in the later years. This pattern is a result of the temporary and geographically limited nature of those courts. They were created in response to atrocities committed in a particular location at a particular time and do not have jurisdiction over crimes committed in other locations or at other times. As a result, these courts tend to grow quickly, but they eventually hit a peak and then begin to wind down as they complete their investigations and trials.

The ICC, on the other hand, is a permanent court, and there is no reason to believe that spending on the ICC will fall towards zero in the foreseeable future. Indeed, given that its membership continues to grow and atrocities regrettably continue to be committed, it is unlikely that the number of situations12 under investigation will shrink. As a result, the long-term spending pattern of the ICC is more likely to look like that of other permanent international organizations, like the United Nations, with gradual growth over time.

Figure 5.1 shows that ICC budgets have remained essentially flat since 2009, despite the fact that the Court’s caseload has been increasing steadily over the same period. For example, the Court budgeted for nine cases in 2009, 11 in 2010, 13 in 2011, 17 in 2012, (p. 87) and 18 in 2013.13 In other words, the Court’s caseload doubled between 2009 and 2013, even though the Court’s funding remained basically unchanged.14 This disparity led the Registry to argue to the ASP that ‘the Court has reached the point when the expectations on the type and level of activities and on the level of resources are diverging’.15 This is a diplomatic way of saying that the Court’s budget is insufficient for the level of activities its members expect it to undertake. While the ASP has been continually pushing the ICC to achieve greater efficiencies so as to do more with the same amount of money, the Court has argued that years of focusing on efficiency have captured most of the available savings and that additional cuts would have diminishing or even negative returns. For example, in its most recent proposed budget, the Registry cautioned the ASP that:

[I]t has become increasingly difficult for the Court to achieve efficiency gains as a result of the current budgetary constraints. It needs to be borne in mind that excessive reductions in resources can themselves create inefficiencies and impair performance.16

The issue of whether the ICC’s funding is sufficient for its mandate will be addressed in more detail in sections 5.5 and 5.6.

Within the Court, the money is divided among the principal organs: the Presidency and Chambers, the OTP, and the Registry.17 Together, these three organs regularly receive more than 90% of the ICC’s budget. The remaining funds are split between the secretariat of the ASP, the secretariat of the Trust Fund for Victims (Trust Fund), the Independent Oversight Mechanism (IOM), and planning for the ICC’s permanent premises.18 See Figure 5.2.

Figure 5.2  Allocation of Funds by Organ of the Court

According to the Court, investigations, analysis, and trials take up slightly more than 50% of the ICC’s funding today. The rest is divided between support functions, spending on victims and witnesses, the costs of the Court’s interim premises, and interpretation/translation. See Table 5.1.19 Unfortunately, the Court does not explain how it calculated these figures, and my own analysis of the Court’s budget produced different figures.20 See Table 5.5.

Table 5.1  Allocation of Funds by Activity (2013)

Activity

Percentage

Trials

28%

Analysis & Investigations

24%

Support

23%

Premises

12%

Victims & Witnesses

8%

Languages

5%

(p. 88) Finally, it is also possible to look at how spending is broken down by the sources of those costs. In 2012 personnel costs21 were 71.8% of the ICC’s overall budget. The next largest expense was general operating expenses at 11.5%, followed by legal aid at 5.7%. See Table 5.2.22 In other words, the Court is correct when it says that ‘[d]ue to the nature of the court’s operations, its main investments are linked to its human (p. 89) resources’.23 Staff costs are more than six times as high as the next largest cost, and more than two and a half times as much as all the other costs of the ICC combined.

Table 5.2  Staff vs Non-Staff Costs (2012)

Source

Percentage

Staff

71.8%

General operating expenses

11.5%

Legal aid

5.7%

Travel

4.2%

Contractual services

4.0%

Supplies

1.0%

Equipment

1.0%

Training

0.7%

5.3  The Constituencies

There are three main constituencies that take part in shaping the ICC’s budget. First is the Court itself, which prepares a proposed budget for the upcoming year and obviously has an interest in how much money it will be allocated. Of course, there is the possibility of infighting between different organs within the Court over how to allocate the budget, but there is little public evidence that this has happened.24 The organs of the Court have maintained a largely unified front in their dealings with the other constituencies. To the extent that officers of the Court have criticized the budgeting process, that criticism has been directed at the States Parties rather than other organs of the Court.

For example, the former prosecutor, Luis Moreno Ocampo, criticized Britain, France, and Germany for supporting the referral of the situation in Libya to the ICC by the Security Council while simultaneously calling for a cap on the ICC’s budget. In effect, these countries were voting to increase the Court’s workload and spending25 while simultaneously refusing to increase its budget. ‘State parties referred Libya to us and now they say they can’t pay,’ he said.26 The current prosecutor, Fatou Bensouda, has said that the States Parties should not be ‘blinded by short-term apparent savings that result in long-term losses and greater inefficiencies’,27 and suggested that the ASP should increase the Court’s budget.28 The President of the ICC has said that imposing a zero growth budget would be ‘profoundly damaging to the Court’s ability to deliver fair and expeditious justice’.29 The Registrar has publicly ‘expressed disappointment (p. 90) that the adopted budget [for 2012] did not reflect the needs and work of the Court’.30 In short, the representatives of the organs of the Court have been consistent in calling for more funding for the Court as a whole without blaming other organs for overspending.

The second obvious constituency is the states who have become parties to the Rome Statute. They act together as the ASP to decide upon and pay for the Court’s budget. However, States Parties have not always agreed amongst themselves about how much funding the Court needs.31 A zero growth policy, where the Court’s funding would not change from year to year, has been championed by some of the ICC’s largest funders, including Japan, Germany, Britain, France, and Italy.32 These countries assert that the Court’s budget must reflect the ‘budgetary constraints’ of the members who pay the most.33 This appears to be a reference to fiscal pressures caused by the slow recovery from the 2008 global financial crisis.34 At the same time, some African states have indicated that they would be willing to pay more to increase the ICC’s budgets so that the Court can initiate investigations outside of Africa.35 This appears to be motivated by a belief that the ICC has focused unfairly on events that have occurred in Africa.36 Of course, given that African states pay for a very small percentage of the ICC’s budget, any proposal to increase ICC funding would be paid for largely by the states that are currently arguing for a zero growth policy.37 Thus, proposing additional ICC funding is virtually costless for most African states.

Finally, the third constituency is NGOs. NGOs have no formal role in the budget process, but many NGOs attend the annual meetings of the ASP where they can interact with and lobby the members of the ASP and officials from the Court.38 In addition, many NGOs have offered written advice to the ASP, usually in the form of position papers that are issued in the run-up to or during the annual meeting. There are some noticeable trends in NGO attitudes towards the budget.

In the ICC’s early years, NGOs often raised concerns that the Court was not spending the entire budget allocated to it39 or that the budget failed to coordinate duplicative (p. 91) activities undertaken by different organs of the Court.40 Those concerns have largely disappeared in recent years, and the main concern among NGOs now is that the budget is insufficient to fulfil the Court’s mandate. For example, the International Federation for Human Rights (FIDH) has argued that ‘the zero growth principle cannot be established as the governing standard to measure the budget of the Court’.41 FIDH has two principal concerns, both of which relate to the participation of victims at the Court: (i) that the Victims Participation and Reparations Section is under-staffed and has not been able to process all of the victims’ applications to participate; and (ii) that cuts to legal aid for victims will make it hard for victims to obtain representation and communicate effectively with their representatives.42 Redress has raised similar concerns.43

Few individual NGOs make direct statements about the budget, however. Most seem to participate through an umbrella organization called the CICC. The CICC represents the views of more than 2,500 different civil society organizations that have an interest in the Court,44 and a number of prominent human rights NGOs, including Amnesty International and Human Rights Watch, sit on its steering committee.45 Within the CICC, advocacy about the budget is handled through the Budget and Finance Team, which is composed of members from NGOs that have the most interest in budget issues. For the last several years, the CICC’s Budget and Finance Team has consistently opposed efforts to institute a ‘zero growth’ budget on the grounds that such a budgeting system is inconsistent with the goals and mandates of the Rome Statute.46 In particular, at various times, it has argued that the budget does not provide sufficient resources for: (i) outreach and public information;47 (ii) legal aid for victims and accused;48 (iii) trial preparation within the OTP;49 (iv) the Trust Fund for Victims;50 and (v) field offices.51 To (p. 92) the extent that NGO opinion can be discerned from publicly available documents, the majority of NGOs that participate in the process seem to support increasing the ICC’s budget. In this sense, the NGO community can be thought of as generally aligned with the Court during the budgeting process, as opposed to some of the Court’s largest funders, who are calling for ‘zero growth’.52

Academics have been a vocal constituency with regard to many aspects of the ICC’s work,53 but there has been relatively little academic work done on the budget. There have been several law review articles that deal principally with the ICC’s budget that were written by a legal adviser working for Amnesty International,54 and several other articles have touched on the ICC’s funding,55 but academics have not generally played a visible role in the budget process.56 For this reason, I do not classify them as a separate constituency.

There is also an argument that the CBF should be treated as a constituency separate from the ASP. While appointed by the ASP, the members of the CBF are supposed to be independent in their recommendations.57 However, they are mostly officials of the governments of the States Parties, which probably limits their real independence. In practice, most of the time they seem to represent the views of the ASP.58 For this reason, I do not treat them as a separate constituency.

5.4  The 2013 Budget Process

The Court’s 2013 proposed budget is a defensive document. For example, the Registry spends a lot of time trying to demonstrate that it has done all that it can to rein in costs, and that the increases it is asking for are largely due to things that are out of its control, including increasing legal aid costs for defence counsel and a surprise decision to start hearings in the two Kenya cases in 2013.59 The OTP, for its part, argues that it has made significant efficiency gains over the years. However, it explicitly notes that it is budgeting for an ‘acceptable level of output’ rather than a ‘maximum possible output’ because achieving the maximum output would cost an additional €3.4 million per year.60 It says (p. 93) that previous reductions in the OTP’s budget have already led to a slowdown in investigations and prosecutions,61 and any further reductions would ‘greatly impact’ the OTP’s ability to produce an acceptable level of output.62 Throughout the proposed budget, one gets the feeling that the Court is desperately trying to convince the ASP that all that could be cut has been cut.

The CBF’s response was largely to reiterate that more cuts could be expected. For example, the CBF stressed that ‘any proposed increase of the budget for 2013 would need to be compensated by reductions elsewhere, in order to bring the budget into line with the level of the approved budget for 2012’.63 This effectively told the Court to expect a zero growth budget. The CBF also urged the Court to ‘reconsider its budgeting process to ensure that the fiscal context was well understood’.64 Yet ultimately the ASP approved an increase in the budget of approximately €6.3 million. Why did the CBF and the ASP back down?

The answer may lie in a document the CBF asked the Court to produce—an estimate of the effect of instituting a zero growth budget in 2013.65 The Court first noted that freezing salaries would violate staff members’ rights under the United Nations’ common system of salaries. The result would almost certainly be expensive and risky litigation before the Administrative Tribunal of the International Labour Organization.66 With that off the table, the Court considered other options. Keeping the judiciary’s budget flat would result in a 25% reduction in staffing of the Chambers with resulting delays and disruptions of judicial proceedings.67

The only thing the OTP could do that would save enough money would be to delay one investigation for a year, but the Court noted that this cost would not go away, it would still have to be paid in future years, and the delay would contribute to impunity.68 The Registry would be able to keep funding flat by eliminating almost all training and by suspending efforts to upgrade the Registry’s computer systems, but again the Court noted that this would just push the cost of these expenses into future years.69 Finally, the Court noted that if it had to also absorb the increasing cost of the rent for its temporary facilities,70 this would result in the equivalent of ‘suspending activities in relation to the situation in Uganda, Darfur (Sudan), and Libya as well as postponing trial hearings in the Kenya cases beyond 2013’.71

Finally, the Court stressed that ‘[w]ere any ongoing proceedings at the Court to be substantially delayed to accommodate budgetary requirements, the Court would… be in violation of fundamental individual rights of persons before the Court’.72 The Court probably had an incentive to dramatize the effect of freezing its budget, but it appears to have been effective. The ASP increased funding for 2013 by 3.8% in real terms.

(p. 94) The 2013 budget debate highlights the tension between two different funding philosophies. On the one hand, you have a number of advanced countries who pay a majority of the ICC’s budget and are still suffering the after-effects of the 2008 financial crisis. These states have argued that the appropriate funding level for the ICC should be determined by what these states can afford. The Court should then do as much as it can with whatever money it is given. This might be thought of as a ‘willingness to pay’ budget philosophy. The other philosophy, championed by the Court and most NGOs, has been that the appropriate funding level for the Court should be determined by evaluating the Court’s mandate. These groups argue that if an action is required by the Rome Statute, then the ASP has an obligation to provide enough funding for the Court to comply with its mandate.

The increase in funding for 2013 can be seen as a partial victory for the mandate-driven funding philosophy. Ultimately, the members of the ASP were unwilling to significantly limit the Court’s ability to comply with its mandate to save €2 million a year. Nevertheless, the Court is still not budgeting for maximum output,73 so it cannot be viewed as a complete victory for the mandate-driven philosophy. Perhaps it is best viewed as a compromise between the two positions.

5.5  How Efficient is the ICC?

At the same time and parallel to the debate between a mandate-driven versus willingness-to-pay budget, there is also a debate about the efficiency of the Court. So, for example, certain members of the ASP have pushed the Court to ‘pay for’ any new costs by finding efficiencies elsewhere. These states argue that there is room to increase the Court’s workload without increasing its budget by focusing on improving efficiency.74 This is often used as an alternative to the willingness-to-pay argument as a justification for a zero growth budget. Implicit in this argument is the assumption that the Court is currently operating inefficiently.

On the other hand, those who believe the Court is underfunded either explicitly or implicitly make the claim that the ICC is operating efficiently and that there is little scope for further improvements in efficiency.75 Any increase in workload must therefore be accompanied by an increase in the budget. Thus debates about the budget are also partly rooted in a debate about the efficiency of the Court. A similar debate has been occurring in the academic literature about whether international criminal trials are too slow, cost too much, and are inefficient.76 But which side is right?

Supporters of increased funding have pointed out that the Court’s workload has increased dramatically in recent years while the budget has been more or less flat since 2009. The 2009 budget was based on the assumption that the ICC would be engaged in judicial proceedings in four situations,77 and that these situations would result in five (p. 95) investigations.79 The Court assumed that two trials would take place.80 At the time, the OTP had initiated ten cases against 15 accused. By early 2013 the OTP had eight situations before it, with 14 open cases against a total of 22 accused.81 Moreover, the Court assumes for budget purposes that it will have 18 cases, seven ongoing investigations, four cases at trial, and two cases on appeal during 2013.82 These figures are summarized in Table 5.3.

Table 5.3  ICC Workload Comparison

2009

2013

Change

Situations

4

8

+100%

Ongoing investigations

5

7

+40%

Cases78

10

18

+80%

Accused

15

22

+47%

Trials

2

4

+100%

Appeals

0

2

n/a

Budget (2013 euros)

€110M

€115M

+4.3%

The Court’s workload was significantly greater in 2013 than it was in 2009, yet the Court’s resources were almost the same. This does not, however, lead automatically to the conclusion that the ICC is underfunded. Whether the Court needs new resources depends on how efficiently the Court was using its resources in 2009. If it was efficiently using them in 2009, then one would expect that significantly increasing the workload would leave the Court dramatically underfunded. On the other hand, if the Court had significant spare capacity in 2009 (i.e. it was operating inefficiently), then increasing the workload would not necessarily leave the Court overburdened. Or the reality may be somewhere in between, where the ICC had some spare capacity in 2009 but not enough to absorb the dramatic increase in workload that has occurred since then, and it is now somewhat underfunded. But how does one determine whether the Court is operating efficiently?

One way is to compare the ICC to another similar court. This chapter will focus on a comparison between the ICC and the ICTY. The ICTY was chosen because it resembles the ICC in many ways. It was a large court that employed hundreds of staff members, was organized similarly to the ICC, had jurisdiction over essentially the same subject matter, conducted a relatively large number of trials, and had a lifecycle that lasted decades.83 There are differences between the ICC and the ICTY that may affect the comparison,84 but the ICTY looks enough like the ICC to make a comparison between them potentially useful.

(p. 96) It does not make sense, however, to compare the current ICC budget to the current ICTY budget because the ICTY is in the process of shutting down. It is no longer conducting investigations, most of the trials are completed, and most of the work that is currently going on is related to appeals. In short, the workload of the ICTY today does not look much like the current ICC workload, which is focused on investigations and trials. A better comparison would be between the ICC as it is now and the ICTY as it was during the middle of its lifecycle when it was actively conducting investigations and trials. The year 2003 was such a year for the ICTY. After a slow first couple of years (much like the ICC), by 2003 the ICTY had hit its stride. It had a large number of open cases, several trials ongoing, and more waiting to start.85 In addition, the ICTY was about ten years old in 2003, roughly the same age the ICC is today. Thus, they were at a similar stage in their lifecycles. In many ways, the ICTY of 2003 looks quite a bit like the ICC of today. For this reason, this section will compare the ICTY in 2003 to the ICC in 2012.86

Three comparisons will be made. First, we will compare how the two different courts allocated their budgets between staff costs and other operating expenses. The second comparison will focus on how the courts allocated their budgets to core activities (investigations, trials, and appeals) versus support functions (human resources, procurement, information technology, etc.). The final comparison will be between the workload and cost of the courts. Together, these comparisons should shed some light on the comparative efficiency of the ICC and ICTY.

The sources of spending were broadly similar across these two tribunals. See Table 5.4.87 There are some differences, however. The ICC spends a higher percentage of its budget on its personnel and a slightly smaller percentage of its budget on things like travel, supplies, equipment, and contractual services. This is broadly consistent with the ICC’s claim that it has already cut all the non-essential spending it can in order to focus on its most important asset—its personnel. In particular, the difference in travel spending is somewhat surprising given that the ICC is much further away from most of its situations than the ICTY was, and thus one would probably have expected the ICC to have a larger travel budget than the ICTY. Table 5.4 represents some evidence in favour of the ICC being slightly more efficient than the ICTY, but it is far from definitive.

Table 5.4  Spending by Sources (ICTY vs ICC)

Source

ICTY (2003)

ICC (2012)

% Change

Staff

62.4%

71.8%

+9.4%

General operating expenses

8.3%

11.5%

+3.2%

Legal aid

13.2%

5.7%

–7.5%

Travel

5.2%

4.2%

–1.0%

Contractual services

6.3%

4.0%

–2.3%

Supplies

1.2%

1.0%

–.2%

Equipment

3.1%

1.0%

–2.1%

Training

0%89

.7%

+.7%

Another way to think about the Court’s efficiency is to look at how much money is spent on core activities versus support functions. International criminal tribunals are created primarily to try people for committing serious violations of international law.88 Of course, they also have other objectives, but the investigations, trials, and (p. 97) appeals can be thought of as the Court’s core activities. Support functions include spending on things like information technology, human resources management, and procurement. Spending on support functions is necessary because the trials cannot occur without support, but most people would probably agree that a court that spent more of its budget on core activities and less on support services was a more ‘efficient’ court. So, how much of the ICC’s budget was spent on core activities versus support functions? And how does that compare to the ICTY?

Unfortunately, comparing the ICC and ICTY on this basis is quite difficult. The ICC’s budgets contain sufficient information to calculate the cost of individual components within the principal organs. The ICTY, on the other hand, does not provide information on how money was allocated between the various components within the principal organs. This makes a comparison difficult, because many of the costs directly associated with the trials, like courtroom management services, are contained within the budget of the Registry. To make an accurate comparison of the cost of the Tribunal’s functions, it is necessary to break down the spending by individual components within the principal organs. Fortunately, there are detailed organizational charts for the principal organs that indicate how many personnel were located in each component.90 The cost of an individual component within one of the principal organs was determined by calculating the percentage of its personnel and attributing that percentage of the organ’s budget to the component.91 This is not an ideal way to determine the cost of the individual components within the principal organs, but it is the only practical way given the available information.

(p. 98) The next step is to attribute the cost of the different components to the functions of the court. While one could break down the data in lots of different ways,92 costs were categorized as relating to: (i) investigation and analysis; (ii) trials and appeals; or (iii) support functions.93 So, for example, at the ICC the OTP’s Investigation Division was categorized as investigation and analysis, while the Prosecution Division was categorized as trials and appeals. Within the Registry, the Court Management Section was categorized as trials and appeals, while the Common Administrative Services Division was categorized as support. Services related to victims and witnesses were categorized as trial costs. Detention costs were categorized as support costs for both courts, even though the ICTY seemed to consider them a trial cost.94 To the extent possible, each court’s functions were categorized in the same way.95 The goal was to create, as much as possible, an apples to apples comparison of how money was spent at these two courts. The results can be seen in Table 5.5.

Table 5.5  Spending by Functions (ICTY vs ICC)

Function

ICTY (2003)

ICC (2012)

% Change

Investigation and Analysis

18%

15%

–3%

Trials and Appeals

51%

46%

–5%

Support Functions

31%

39%

+8%

This analysis suggests that the ICC is spending its money less efficiently than the ICTY did in 2003. The ICC spends a greater portion of its budget on support functions and less on investigations, analysis, trials, and appeals.96 All other things being equal, one would probably conclude that a court that spends a greater percentage of its funds on its core activities is operating more efficiently than a court that spends more of its money on support functions. Moreover, this suggests that the ICC could cut its support spending further. After all, the ICTY was able to operate with nearly 10% less of its budget going to support functions.

A final way to look at the ICC’s efficiency is to compare the two courts’ workload and cost. Efficiency is often defined as ‘[t]he ratio of useful work performed to the total energy expended’.97 This suggests that one way to calculate the efficiency of a court is to measure its workload or output and divide by its cost. This ratio can be calculated for different (p. 99) courts and the results compared. The court with a higher ratio of work performed to money spent would be the more efficient court.

Cost is easy to calculate. The General Assembly approved a budget of $128,551,900 for the ICTY in 2003.98 Once adjusted for inflation and converted to euros,99 this translated into €124,815,000 in 2012. The ICC’s budget in 2012 was €108,800,000.100 This means that the ICTY received more funding in 2003, in real terms, than the ICC did in 2012.

Workloads are harder to compare. The best source for information is each court’s annual report to the United Nations General Assembly.101 By the end of 2012, the ICC had jurisdiction over investigations into eight situations.102 This had resulted in the initiation of 17 cases by the OTP that covered the alleged crimes of 27 accused. During 2012, three cases involving four accused were being tried at the ICC. At the same time, four cases were in the midst of pre-trial preparations. The Court held confirmation of charges hearings in three cases and heard admissibility challenges in three cases. In contrast, during 2003, the ICTY had 42 open cases against a total of 74 accused.103 Accused from 13 of those cases made their initial appearances, while 12 cases were in the midst of pre-trial preparations. Six cases were tried during 2003 involving nine accused. The results are presented in Table 5.6.

Table 5.6  Workloads and Costs (ICTY vs ICC)

Activity

ICTY (2003)

ICC (2012)

% Difference

Open Cases

42

17

–60%

Total Accused

74

27

–64%

Pre-trial Proceedings

12

4

–67%

Trials

6

3

–50%

Accused at Trial

9

4

–56%

Cost

€125M

€109M

–13%

(p. 100) Several things are notable about Table 5.6. First, the ICC has fewer open cases and accused than the ICTY had at a similar stage in its lifecycle. The ICTY had a larger number of cases and accused because it charged many lower-ranking individuals during its early years.104 The ICC has consciously chosen to focus on a much narrower group of accused.105 Part of the reason for having a smaller number of cases was a desire to increase efficiency by trying only those most responsible for crimes within the jurisdiction of the Court. Thus, by opening fewer cases the Court might be operating more efficiently than the ICTY.

On the other hand, the ICTY was holding pre-trial proceedings in three times as many cases, and actually tried twice as many cases, covering more than twice as many accused as the ICC did during a similar time period. Of course, the ICTY had slightly more funding (in real terms) than the ICC, but the difference in funding is too small to explain the dramatic differences in the number of cases in pre-trial proceedings and at trial. By each of these three measures (number of cases in pre-trial preparations, number of accused at trial, and number of trials), the ICTY was able to produce at least twice as much output in 2003 as the ICC did in 2012 for only slightly more money. The simplest way to interpret this data is that the ICTY was significantly more efficient than the ICC.

Ultimately, these comparisons suggest that the ICC is less efficient than the ICTY was in 2003. It spends a greater percentage of its budget on support functions than the ICTY did, and its trial output is roughly half that of the ICTY. There are some factors that point in the other direction. For example, the lower total number of cases and accused represents an attempt to increase efficiency by focusing only on those most responsible for crimes, and the Court spends a smaller percentage of its money on things like travel, contractual services, and equipment than the ICTY did. But on the whole, the distribution of costs between core functions and support services and the trial output of the court seem to be more direct indicators of efficiency. And by these indicators, the ICTY was more efficient than the ICC. As we shall see in section 5.6, however, things may not be that simple.

5.6  Possible Explanations for the Comparative Inefficiency of the ICC

It seems hard to reconcile the conclusion in the previous section with the ICC’s claim that it is as efficient as possible and that further attempts to improve efficiency would actually have negative returns.106 This section will look at possible explanations for the apparent contradiction. One problem might be that the ICTY and ICC are different in some way that makes comparing them misleading. Section 5.5 assumed the ICC and (p. 101) ICTY are comparable courts. If they are not, then the comparison between them may not tell us anything meaningful about their relative efficiency. There are several ways in which the ICC is different from the ICTY that might invalidate the comparison.

First, the ICTY had jurisdiction only over crimes that took place in the former Yugoslavia. The ICC has eight open situations at the moment and each one is in a different country. Thus one possibility is that the necessity of investigating situations in different locations drives up the cost of the ICC. It sounds plausible, but the data does not support this hypothesis. If this were true, one would expect the result to be higher investigation and analysis costs at the ICC than at the ICTY, but in reality the ICC spends a smaller percentage of its budget on investigations and analysis than the ICTY did.107

Another possibility is that the indicators used (number of cases at trial and number of accused at trial) are not appropriate for measuring efficiency. Not all trials or accused are the same. The trial of Slobodan Milošević was obviously very different from the trial of Anto Furundžija. The Milošević trial was one of the most complex cases ever taken to trial. It involved hundreds of witnesses and lasted years. The trial of Furundžija was the simplest trial the ICTY conducted. It lasted only ten days and involved only 14 witnesses. Thus comparing courts simply based on the number of cases or accused at trial is potentially misleading. In the absence of a way of accurately comparing the complexity of individual cases, it is difficult to know whether the comparison of cases and accused tried is useful.108

Another difference between the ICC and the ICTY is that the ICC permits victims to participate in the cases.109 The ICTY did not. One possibility is that victim participation at the ICC increases the cost of trying cases by slowing down the proceedings.110 This is hard to quantify, but my experience at the ECCC, another court that permits victim participation, was that the participation of the victims and their representatives did slow down the trial. This might be a price we are willing to pay to permit victim participation, but it may skew the comparison with the ICTY.

Another possibility is that there are additional procedural steps at the ICC that had no analogy at the ICTY, which makes a direct comparison between the two courts misleading. For example, much time has been spent at the ICC arguing over whether cases are admissible. This has turned out to be a complex matter that has come up repeatedly. In 2012 the ICC was dealing with admissibility challenges in three cases. There is no direct analogy to the admissibility challenge at the ICTY because the ICTY had primacy over national courts111 while the ICC’s jurisdiction is subject to (p. 102) the principle of complementarity.112 Perhaps this difference accounts for some of the apparent inefficiency of the ICC.

Related to the concern about admissibility challenges is the question of state cooperation. While the ICTY initially had difficulty getting cooperation from some of the states in the former Yugoslavia, the members of the European Union and NATO eventually applied sufficient pressure to ensure cooperation. The ICC has not had equivalent success in getting cooperation from countries like Sudan and Libya, partly because there is no state or bloc of states willing to exert sufficient pressure on those countries to ensure cooperation. In the absence of cooperation it is harder to investigate and to obtain custody over those accused of committing crimes. This may also make the ICC less efficient than the ICTY.

Another possibility is that the ICTY benefited from greater institutional experience and economies of scale. It was by far the largest of the international criminal tribunals that were created in the 1990s and it tried the largest number of accused. This probably resulted in economies of scale that made the average ICTY trial cheaper than it would have been at a tribunal that tried fewer cases. The ICTY also benefited from hard-won institutional experience. For example, incremental changes were made over time to its procedural rules that were designed to streamline the trials. These changes were the result of lessons learned from the early trials. Thus one might expect that as tribunals try more cases their efficiency might slowly improve. At the moment, the ICC has had a relatively small number of trials and probably has not developed the same institutional experience or economies of scale as the ICTY.

This is a non-exhaustive list of the ways in which the ICC might be different enough from the ICTY to affect the comparison of their workloads. Unfortunately, it is hard to quantify most of these potential differences. There is, however, one quantifiable way in which the ICC in 2012 was different from the ICTY in 2013—average staff costs. Even though both courts cost roughly the same amount in real terms, the ICTY had 1,118 posts, while the ICC had only 766 posts. As a result, the ICTY’s average cost per post (in 2012 euros) was €47,589, while the ICC’s average cost per post was €77,897—64% higher even after taking into account inflation!

This difference does not seem to be the result of a change in the seniority structure of the court staff. If one compares the numbers of staff members at the different salary levels,113 the average staff seniority was very similar across the two courts.114 It is not clear why the ICC’s per post cost is so much higher than ICTY’s per post cost. The numbers suggest that the cost of staff has been growing faster than the rate of inflation over the last 20 years. But a comparison of the UN salary scales115 from 2003 and 2012116 indicates that this is not the case for salaries. This suggests that the difference has to do with non-salary costs.

(p. 103) Nevertheless, if one recalculates the cost of the ICC assuming that average staff costs were the same as at the ICTY in 2003 (adjusted for inflation),117 then the ICC would have cost only €79M in 2012. In this alternate scenario, the ICC would have cost 37% less in 2012 than the ICTY did in 2003. This still leaves the ICC looking slightly less efficient than the ICTY—its outputs are still something like 50% to 60% less than the ICTY—but alleviates a large part of the discrepancy. In short, it appears that the differences in real staff costs account for a large part of the apparent inefficiency of the ICC.

It is not clear, however, that much can be done about this without making some very significant changes at the ICC. The ICC is part of the UN’s common system for personnel, which means that staff costs are largely out of its hands. The Court has already warned the ASP that any attempt to deviate from the common system would result in expensive and very risky litigation with its staff members.118 Moreover, even if the Court were to break away from the UN common system and institute a significant reduction in salaries or benefits, it seems likely that there would be attrition among its personnel, particularly those with the most valuable skills. This could be extremely detrimental for an institution that depends so heavily on its personnel.119 Finally, decreasing wages is extremely difficult for any organization.120

5.7  Conclusion

In recent years the process of funding the ICC has been dominated by a debate about how much money the ICC needs. Many of the ICC’s largest contributors, including Japan, Germany, France, Britain, and Italy, have been calling for ‘zero growth’ budgets as a response to fiscal constraints brought on by the aftermath of the 2008 global financial crisis. These countries make two alternative arguments in favour of this position. First, they argue that they simply cannot afford to pay more. Second, they argue that the ICC is inefficient and that it can do more with the same amount of money if it becomes more efficient.

The Court, on the other hand, has been calling for additional funding. It argues that it is underfunded and that it cannot carry out its mandate without additional funding. In support of this position, it notes that the ICC’s workload has increased dramatically since 2009 even though its budget has remained about the same. In effect, it is arguing that the ICC is efficient. NGOs, while calling for more funding and opposing a zero growth budget, have simultaneously highlighted areas where they believe the ICC is operating inefficiently.121

(p. 104) This chapter has attempted to shed light on the question of whether the ICC is efficient by comparing the ICC to the ICTY. The results are somewhat ambiguous. At first glance, the ICC does seem to be less efficient than the ICTY at conducting trials. It conducts significantly fewer trials than the ICTY did for only slightly less money. In addition, a comparison of how the two courts allocated their money between core activities and support activities indicates that the ICC spends almost 10% more of its budget on support functions than the ICTY did. As a result, it spends less on investigations, trials, and appeals than the ICTY.

This finding is tempered by the fact that the largest contributor to the difference in efficiency between the ICC and the ICTY is staff costs. Staff costs, however, are largely out of the hands of the ICC, which is a member of the United Nations common systems for staff. It would be quite difficult for the ICC to leave the common system and could have serious adverse consequences for the Court because it might well result in the departure of the Court’s most skilled personnel.

In addition, there are ways in which the ICC is different from the ICTY that might affect the comparison between the two. For example, the ICC permits victims to participate in the process, and the ICC’s cases have been marked by a large number of lengthy admissibility challenges, both of which might slow down the process and neither of which was really a factor in the ICTY’s cases. As a result, it may not be fair to expect the ICC to be as efficient at conducting trials as the ICTY. Finally, the ICC has tried relatively few cases so far. It is possible, perhaps even likely, that the ICC will become more efficient as more cases are tried. This appears to have been the case at the ICTY.

Ultimately, my conclusions are not definitive because the real differences between the ICTY and ICC make a naive mathematical comparison of the two courts potentially misleading. Having said that, even once the differences are accounted for, it does appear that the ICTY was more efficient than the ICC, which indicates that there is room for further improvement at the ICC. Specifically, the comparison to the ICTY suggests that the ICC may be able to rearrange its spending to devote a larger proportion of its budget to investigations, trials, and appeals and less of its budget to support functions.

Footnotes:

Assistant Professor of Law at the John Marshall Law School in Chicago, Illinois, USA. Editing assistance was provided by Fang Han. This chapter was improved by the comments of those who read earlier versions, including Kip Hale and Jonathan O’Donohue.

1  Indeed, the distribution of dues is expressly based on the scale of assessments used by the United Nations. Art 117 Rome Statute of the International Criminal Court (signed 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (‘Rome Statute’).

2  Art 112 Rome Statute.

3  Art 112(2)(d) Rome Statute.

4  Art 115 Rome Statute. The Rome Statute envisioned the United Nations paying for costs associated with situations that were referred to the Court by the Security Council, see ibid., Art 115(b), but this has not happened yet. The Court can also receive voluntary contributions, see ibid., Art 116, but these have not been a significant source of funding so far.

5  There is also a contingency fund that exists outside of the regular budget to cover unexpected events, like the opening of a new investigation. See Regulation 6.6 Financial Rules and Regulations of the ICC ICC-ASP/1/3, 3–10 September 2002 (First Session of the Assembly of States Parties) 284.

6  In reality, it is a little more complicated than this. Any given year’s budget is influenced by decisions made about prior years’ budgets, and there are debates between the Court and the ASP that take place over multiple years. For example, the ASP and Court have been engaged for several years in a dialogue about the use of consultants and temporary assistance to handle work that probably should be done by permanent staff members.

7  The CBF was established by Resolution ICC–ASP/1/Res.4. Their independence was affirmed in Resolution ICC–ASP/2/Res.7. In practice, however, most of the CBF members work for the governments of members of the ASP, so their independence may be more theoretical than actual.

8  See J O’Donohue, ‘Financing the International Criminal Court’ (2013) 13 International Criminal Law Review 269, 276. On budget decisions of the ASP, see also J O’Donohue, Chapter 6, in this volume.

9  See ibid. ; J O’Donohue, ‘The 2005 Budget of the International Criminal Court: Contingency, Insufficient Funding in Key Areas and the Recurring Question of the Independence of the Prosecutor’ (2005) 18 Leiden Journal of International Law 591 ; J O’Donohue, ‘Towards a Fully Functional International Criminal Court: The Adoption of the 2004 Budget’ (2004) 17 Leiden Journal of International Law 579.

10  The exact figure, taken from the ICC’s budgets, is €942,802,000. Once this number is adjusted to account for inflation, it becomes €1,028,360,000 in 2013 euros. The ASP resolutions that contain the annual budgets appropriations are available from the ICC website at <http://www.icc-cpi.int/en_menus/asp/resolutions/Pages/resolutions.aspx> accessed 12 April 2014. The figures were adjusted for inflation using Eurostat’s Harmonised Indices of Consumer Prices for the 17 state euro areas, available at <http://epp.eurostat.ec.europa.eu/portal/page/portal/eurostat/home/> accessed 12 April 2014. Inflation figures for 2013 were based on the midpoint of the European Central Bank’s prediction of 2013 euro-area inflation. See European Central Bank, ECB Staff Macroeconomic Projections for the Euro Area (September 2012) <http://www.ecb.int/pub/pdf/other/ecbstaffprojections201209en.pdf> accessed 12 April 2014.

11  Compare, for example, Figure 5.1 with the spending at the ICTY, ICTR, ECCC, and SCSL as shown in S Ford, ‘How Leadership in International Criminal Law is Shifting from the United States to Europe and Asia: An Analysis of Spending on and Contributions to International Criminal Courts’ (2011) 55 Saint Louis University Law Journal 953.

12  The Rome Statute distinguishes between situations, cases, and crimes. A situation is a group of connected acts that appear to constitute one or more crimes within the jurisdiction of the Court. Art 13 Rome Statute. Situations are usually defined geographically. A case is comprised of one or more crimes alleged to have been committed by one or more accused that are intended to be prosecuted together. A single situation can and often does result in more than one case. Cases can and often do allege the commission of more than one crime.

13  See Proposed Programme Budget for 2013 of the International Criminal Court, ICC–ASP/11/20 (vol II) 14–22 November 2012 (Eleventh Session of the Assembly of States Parties) 4, Table 3 (‘Proposed Programme Budget for 2013’).

14  See also Table 5.3 infra.

15  Proposed Programme Budget for 2013 (n 13) 11. Here, it was repeating something the CBF had first said in 2011. Ibid.

16  Ibid., 18.

17  The Rome Statute treats the Presidency as a principal organ that is separate from the Chambers. See Art 34 Rome Statute. But for budgeting purposes, the Presidency (Programme 1100) is considered a part of the overall judiciary budget (Major Programme I). See Proposed Programme Budget for 2013 (n 13) para. 22.

18  The ICC is currently housed in temporary premises and is awaiting construction of a purpose-built permanent facility. This is expected to be ready in 2015 or 2016. Construction of the permanent facility is being funded by a loan from the Netherlands, and the costs of the loan will not appear as part of the Court’s budget until it takes possession of the building.

19  The data for Table 5.1 comes from the Proposed Programme Budget for 2013 (n 13) Table 2, at 13.

20  There is something odd about the ICC’s allocation. The Court appears to allocate the OTP’s entire budget to analysis and investigations, even though a main function of the OTP is preparing for and conducting trials. The cost of the OTP’s Prosecution Division, for example, should probably be allocated to trials rather than to analysis and investigations. It is not clear how the rest of the figures were calculated.

21  This includes costs for the judges, professional staff, general staff, temporary assistance, overtime, and consultants.

22  The data for this table comes from the Proposed Programme Budget for 2013 (n 13), Annex VI, 180.

23  Reports of the CBF, ICC–ASP/11/20 (vol II) 14–22 November 2012 (Eleventh Session of the Assembly of States Parties) Annex III, 258 (‘Report of the CBF’).

24  It seems likely that some amount of jockeying for funding occurs behind the scenes between the organs of the Court. During the drafting of the proposed budget the various organs of the Court must decide how much funding to request and (more importantly) how to propose allocating that funding between the organs. This process is probably not quite a zero sum game, but it seems geared to produce tensions between the organs as they negotiate internally over the proposed allocation of relatively scarce resources. At the same time, the organs have an incentive to present a united front to the ASP so that they do not become involved in publicly negotiating against each other for funding, which might result in an overall decrease in the Court’s budget.

25  The Libya referral has resulted in situation-specific spending of more than 8 million euros over the period 2011–13. See Proposed Programme Budget for 2013 (n 13) Table 3, at 13. Undoubtedly there will be additional costs in future years. The ultimate cost of the Security Council’s referral of the situation in Libya is likely to be measured in tens of millions of euros.

26  R Hamilton, ‘Member Countries Fight Over International Court’s Budget’, Reuters, 20 December 2012 <http://newsandinsight.thomsonreuters.com/Legal/News/2011/12_-_December/Member_countries_fight_over_international_court_s_budget/> accessed 29 May 2013.

27  M Corder, ‘ICC Official: Don’t Impose Short-sighted Fund Cuts’, The Cortez Journal, 14 November 2012 <http://www.cortezjournal.com/article/20121114/API/1211140777/ICC-official:-Don%27t-impose-short-sighted-fund-cuts> accessed 29 May 2013.

28  M Knigge, ‘ICC Prosecutor Lauds Cooperation with the US’, Deutsche Welle, 7 February 2013 <http://www.dw.de/icc-prosecutor-lauds-cooperation-with-the-us/a-16583948> accessed 13 April 2014 (stating that ‘there is a need for the state parties to look into the resources that the ICC has’).

29  Remarks by Judge Sang-Hyun Song, President of the ICC, during the 10th Session of the Assembly of States Parties (12 December 2011) <http://www.icc-cpi.int/iccdocs/asp_docs/ASP10/Statements/ASP10-ST-Pres-Song-Remarks-ENG.pdf> accessed 18 June 2013 .

30  See CICC, Report on the Tenth Session of the Assembly of State Parties to Rome Statute (12–21 December 2011) 14 <http://www.coalitionfortheicc.org/documents/ASP10_report_final.pdf> accessed 13 April 2014 (‘Report on the Tenth Session of the Assembly’).

31  See ibid. (noting disagreement among states about how much money the Court needed).

32  Hamilton (n 26); R Corey-Boulet, ‘Concern over ICC Funding’, Inter Press Service, 28 September 2011 <http://www.ipsnews.net/2011/09/concern-over-icc-funding/> accessed 17 July 2013.

33  Hamilton (n 26) .

34  See generally International Monetary Fund, World Economic Outlook (WEO): Coping with High Debt and Sluggish Growth (Washington, D.C.: International Monetary Fund 2012) <http://www.imf.org/external/pubs/ft/weo/2012/02/pdf/text.pdf> accessed 13 April 2014 (noting that recovery from the global financial crisis of 2008 has been slow and that growth is likely to remain low while unemployment is likely to remain high in many advanced economies).

35  Hamilton (n 26) .

36  See e.g. C Jalloh, ‘Regionalizing International Criminal Law?’ (2009) 9 International Criminal Law Review 445, 462–5.

37  See Ford (n 11) 969–71 .

38  More than 150 NGOs attended the Tenth Session in 2011. See Report on the Tenth Session of the Assembly (n 30) 4.

39  See Amnesty International, ICC: Recommendations for developing an effective budget process (2007) <http://www.iccnow.org/documents/AI_Budget_07apr26_eng.pdf> accessed 30 May 2013.

40  Human Rights Watch, Human Rights Watch Memorandum to States Members of the Assembly of States Parties (2004) <http://www.iccnow.org/documents/HRW%20Memorandum%20to%20ASP%20members%20090204.pdf> accessed 13 April 2014 .

41  FIDH, Cutting the Weakest Link: Budget Discussions and their Impact on Victims’ Rights to Participate in the Proceedings (Position Paper written for the 11th Session of the ASP, Montserrat Carboni, October 2012) 20 .

42  Ibid.

43  Redress, Hundreds of Victims Prevented from Participating in Crucial Hearings Due to Lack of Resources at the International Criminal Court (15 July 2011) <http://www.redress.org/downloads/StatementVictimParticipation15July2011.pdf> accessed 30 May 2013.

44  See Coalition for the International Criminal Court, ‘About the Coalition’ <http://www.iccnow.org/?mod=coalition> accessed 30 May 2013.

45  See Coalition for the International Criminal Court, ‘Steering Committee’ <http://www.iccnow.org/?mod=steering> accessed 30 May 2013.

46  See CICC, Comments and Recommendations on the 2013 Budget to the 11th Session of the Assembly of States Parties (6 November 2012) <http://iccnow.org/documents/CICC_Budget_and_Finance_Team_Paper_ASP11_6_Nov_2012.pdf> accessed 14 April 2014 ; ‘Global Coalition Calls on States to Maintain Financial Commitment to the ICC’, Coalition for the International Criminal Court Press Release, 8 July 2011 <http://www.iccnow.org/documents/CICC_PR_Budget_FINAL_08072011_(1).pdf> accessed 14 April 2014; CICC, Comments and Recommendations on the 2011 Budget to the Ninth Session of the Assembly of State Parties (25 November 2010) <http://www.iccnow.org/documents/CICC_Budget_and_Finance_Team_Paper__30Nov2010.pdf> accessed 14 April 2014.

47  CICC, Comments and Recommendations on the 2013 Budget (n 46) 1 .

48  Ibid., 2 .

49  Ibid., 5 .

50  Ibid., 7 .

51  CICC, Submission to the Committee on Budget and Finance at its Nineteenth Session on 24 September to 3 October 2012 (20 September 2012) 3 <http://www.iccnow.org/documents/BF_Commentary_on_2013_Budget_FINAL.pdf> accessed 14 April 2014.

52  Of course, the interests of the NGO community are not perfectly aligned with the Court, even if one only considers budget issues, and NGOs also criticize the Court on budget matters. For example, CICC has criticized the Court for failing to provide sufficient justification for its budgets even as it generally opposes a zero growth budget. See CICC, Comments and Recommendations to the Tenth Session of the Assembly of State Parties (29 November 2011). See also infra n 107 (NGOs criticizing the Court for allocating insufficient funding to investigations).

53  For example, a search in Westlaw for academic articles with ‘International Criminal Court’ in the title returned more than 600 results. The exact search, which was carried out on 15 March 2013, was for TI (‘International Criminal Court’) in the database JLR (Journals and Law Reviews).

54  See O’Donohue, ‘Financing the International Criminal Court’ (n 8) ; O’Donohue, ‘The 2005 Budget of the International Criminal Court’ (n 9) ; O’Donohue, ‘Towards a Fully Functional International Criminal Court’ (n 9) . Mr O’Donohue is also the leader of the CICC’s Budget and Finance Team.

55  See Ford (n 11) 968–71 ; C Romano, ‘The Price of International Justice’ (2005) 4 Law & Practice of International Courts and Tribunals 281, 302–3.

56  They may play a less visible role as advisers to the members of the ASP and various NGOs, but this is hard to quantify.

57  See supra n 7.

58  See infra nn 63–4. See also O’Donohue, ‘Financing the International Criminal Court’ (n 8) 276–7.

59  Proposed Programme Budget for 2013 (n 13) 62–4. See also ibid., 84.

60  Ibid., 39.

61  Ibid.

62  Ibid.

63  See Report of the Committee on Budget and Finance (n 23) 201. See also ibid., 226.

64  Ibid. This is apparently a reference to the fiscal constraints faced by the developed countries that fund the majority of the ICC’s budget.

65  See Report of the Committee on Budget and Finance (n 23) Annex III.

66  Ibid., 258.

67  Ibid., 260.

68  Ibid., 261.

69  Ibid., 262.

70  Previously the rent on the Court’s temporary facilities had been subsidized by the host nation (the Netherlands), but starting in 2013 the Court now has to pay the rent itself, at a cost of almost €6 million per year.

71  Report of the Committee on Budget and Finance (n 23) 265.

72  Ibid.

73  See text accompanying nn 52–3.

74  See, for example, text accompanying n 63.

75  See text accompanying n 16 and 27.

76  See Ford (n 11) 954 .

77  See Proposed Programme Budget for 2009 of the ICC, ICC–ASP/7/9, 14–22 November 2008 (Seventh Session of the Assembly of States Parties) 7.

79  Ibid., 8.

80  Ibid.

81  This information was collected from the ICC’s website on 18 March 2013, specifically the page on Cases and Situations.

82  Proposed Programme Budget for 2013 (n 13) Annex III, at 175. See also ibid., Table 3, at 13.

78  Here I use the ICC’s prediction of the number of cases it will have open in 2013 rather than the number that were open at the beginning of 2013.

83  A comparison with the ICTR, the other ad hoc court, would also probably make sense, but will have to wait for another occasion.

84  See section 5.6 for a discussion of the differences between the two courts.

85  See text accompanying n 104.

86  The year 2012 was chosen for the ICC rather than 2013 because complete information about 2013 was not available at the time this chapter was written.

87  The information on the ICC comes from Table 5.2. The information for the ICTY was derived from UN Secretary General, Budget for the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 for the biennium 2002–3, UN Doc A/56/495 (23 October 2001), Table 3 (‘ICTY Budget 2002–3’). The ICTY included defence counsel costs in the contractual services category, but they have been split out in the table. Data on defence costs comes from ibid., para. 43.

89  It is likely that the ICTY did have a training budget, but that it was not recorded as a separate line item in the budget.

88  S Dana, ‘Turning Point for International Justice?’ in A Klip and G Sluiter (eds), Annotated Leading Cases of International Criminal Tribunals, vol. 11 (Antwerp: Intersentia 2007) 962, 972 (‘The primary function of the international criminal tribunal is to determine the criminal responsibility and punishment of those individuals found guilty of the crimes under its jurisdiction.’); A Fulford, ‘The Reflections of a Trial Judge’ (2011) 22 Criminal Law Forum 215, 216 (‘We are first, foremost and last a criminal court: our core business is to process criminal trials.’).

90  UN Secretary General, Budget for the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 for the biennium 2002–3, UN Doc A/56/495/Add.1 (23 October 2001) 4–7.

91  Using the number of personnel in the components as a proxy for that component’s portion of the organ’s budget appears to be a reasonable way to estimate component costs given that personnel costs are such a large part of the ICTY’s overall budget. See Table 5.4.

92  For example, the Court’s own breakdown treats language services and victims and witnesses services as separate categories. See Table 5.1.

93  Costs that were unique to each court were excluded from the analysis so as to make the comparison, as much as possible, between the types of costs that both courts incurred. So, for example, the costs of the Secretariat of the ASP were excluded from the ICC calculation, while the costs of assistance to the ICTR were excluded from the ICTY calculation.

94  In the ICTY’s organizational chart, the Detention Unit is located within the Judicial Support Division. Nonetheless, it was categorized as a support function.

95  A spreadsheet showing how these figures (and all the figures in this chapter) were calculated is available upon request from the author.

96  Indeed, this may partly explain why the ICTY was able to try cases more efficiently than the ICC. See Table 5.6 and the accompanying discussion.

97  Oxford English Dictionary 2nd edn (Oxford: Clarendon Press 1989) .

98  UN General Assembly, Financing of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc A/RES/57/288 (12 February 2003).

99  The US dollar figure for 2003 was first converted to 2012 US dollars using the Consumer Price Index maintained by the U.S. Bureau of Labor Statistics. It was then converted to 2012 euros using the average euro to dollar exchange rate for 2012 (1$ = .7781€).

100  Programme budget for 2012, the Working Capital Fund for 2012, scale of assessments for the appointment of expenses of the ICC, financing appropriations for 2012 and the Contingency Fund, ICC-ASP/10/Res.4, 21 December 2011 (Tenth Session of the Assembly of States Parties) 1 (adopted by consensus).

101  The ICTY Report is UN Security Council, Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc A/58/297—S/2003/829 (20 August 2003) (‘ICTY Report 2003’) and covers the work of the Tribunal in the period August 2002 to July 2003. The ICC Report is UN Secretary General, Report of the International Criminal Court, UN Doc A/67/308 (14 August 2012) and covers the work of the Court during the period August 2011 to July 2012.

102  It was also conducting preliminary examinations in nine places.

103  ICTY Report 2003 (n 101) Annex I.

104  See D Raab, ‘Evaluating the ICTY and its Completion Strategy’ (2005) 3 Journal of International Criminal Justice 82, 84–8.

105  See Prosecutorial Strategy 2009–12, OTP, ICC, 1 February 2010, paras 18–21 (noting the OTP will only ‘prosecute those who bear the greatest responsibility for the most serious crimes’).

106  See section 5.4.

107  NGOs have criticized the ICC for failing to allocate sufficient resources to investigations. See B Evans-Pritchard and S Jennings, ‘ICC’s Funders Seek Greater Efficiency’, Institute for War and Peace Reporting (18 June 2013) (noting concerns by NGOs that the prosecutor has insufficient resources to conduct investigations).

108  The author is working on a solution to this problem and hopes eventually to be able to compare cases of different complexity accurately across courts.

109  See Art 68 Rome Statute.

110  See generally C Van den Wyngaert, ‘Victims Before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge’ (2011) 44 Case Western Reserve Journal of International Law 475 (describing ways in which the participation of victims affects trials at the ICC).

111  Art 9(2) Statute of the ICTY, UNSC Res 827 (25 May 1993) UN Doc S/RES/827, Annex (‘The International Tribunal shall have primacy over national courts’).

112  Art 17 Rome Statute.

113  Data for the ICTY’s staff structure was taken from ICTY Budget 2002–3 (n 87) Table 4. Data for the ICC’s staff structure was taken from ASP, Programme budget for 2012 (n 100) para. 2.

114  In both courts, the median staff member was serving in a General Services post, while the average staff member was serving in a Professional Grade 1 or Professional Grade 2 post.

115  Salary scales at the ICC and ICTY are both based upon the UN’s official salary scales.

116  Available from the website of the United Nations International Civil Service Commission <http://icsc.un.org/secretariat/sad.asp?include=ss> accessed 15 April 2014.

117  This was done by taking overall staff costs at the ICC and reducing them so that the average per post cost was €47,589 (the same as at the ICTY in 2003 once adjusted for inflation). All of the other components of the ICC’s budget were left unchanged.

118  See Report of the Committee on Budget and Finance (n 23) 258.

119  See ibid., Annex III, at 258.

120  The existence of downward nominal wage rigidity (the idea that it is difficult to decrease nominal wages) is well established in the economic literature. See C Knoppik and T Beissinger, ‘Downward Nominal Wage Rigidity in Europe: An Analysis of European Micro Data from the ECHP 1994–2001’ (2009) 36 Empirical Economics 321.

121  See (nn 52 and 107).