The Cost of Justice – Is the ICC living beyond its means?
International criminal tribunals have been subjected to much criticism over the years for being too slow and too costly. Part of the case against them is unfair: justice can hardly be reduced to its financial cost and it requires time to proceed in orderly fashion. Part of the criticism is, however, well justified and various tribunals have, therefore, sought to reduce the cost of their proceedings and taken measures to shorten these proceedings.
Whilst it certainly is not the sole, nor perhaps even the primary, consideration relevant to assessing the work of international criminal tribunals, the financial cost of these tribunals is a factor of relevance in assessing their work and performance. It is particularly so when donors have to decide between various models for the courts and tribunals that they are setting up (national, international, internationalized, etc). If local jurisdictions can do the same job at a fraction of the cost, why bother with an international tribunal? It is also relevant because we, taxpayers of the world, are paying for these tribunals and they owe it to us to spend our money as responsibly as they can. Finally, it might be relevant to evaluating the “quality” of justice that these tribunals are generating: if the money that is spent on these institutions goes into feeding new international bureaucracies rather than paying for the core activities of the judicial institution (investigative, prosecutorial, judicial and defence work), there may be a case to ask for their reform.
Since it was created, the International Criminal Court (ICC) has spent almost half a billion euro. Considering that only one trial – and a relatively minor one by international standards – has started before the ICC (after about 6 years of existence), this seems – and is – a staggering figure. What is equally staggering is the structure that is put in place around the beating heart of the ICC: its courtroom. With only one trial going on, the ICC now has a budget of 101,000,000€ and the ICC website tells us that as of January 2009, 285 women and 302 men worked for the ICC (i.e., 587 employees). By comparison, the ICTY has a biennium budget for 2008-2009 of 238,000,000€, so approximately 120,000,000€/year for over 1,118 employees (see http://www.icty.org/sid/325) with 7 on-going trials, 5 appeals (plus contempt matters) and 3 cases in preparation at the pre-trial stage. With almost twice the staff and much greater judicial activity, the ICTY is costing almost the same as the ICC. Despite this, the ICTY has been criticized for being too expensive. In those circumstances, what should be said of the ICC?
Certainly, running international criminal tribunals costs money. There comes a point, however, when the gap between what is being achieved judicially and what it costs to the international community should raise some serious concerns among those who foot the bill. Some indications are quite worrying. Some might be anecdotal (though perhaps telling of a more general problem) whilst others are better characterized as “institutional”.
In the 1-7 August 2009 issue of the magazine the Economist, the ICC purchased a full one-page of advertising in the “Executive Focus” section of this magazine. For what purpose? To advertise two administrative positions that it wishes to fill. Such a page costs £21,000. By comparison, the UN Habitat advertised in the same section of the magazine for two – hierarchically superior positions – in a quarter of a page. Cost: £5,800. Will the ICC really attract those bankers and business executives that read these pages of the Economist or should it perhaps have advertised in the cheaper and perhaps more adequate “Appointments” section of the Economist where important organizations such as the European Investment Bank or the International Tribunal for the Law of the Sea consider it perfectly adequate and sufficient to advertise in a quarter of a page costing them £4,900. Should the ICC advertise at once each and all of the positions hierarchically similar to the ones contained in the Economist advertisement (39 positions – 30 P5 and 9 D1), it would cost ICC member states (and their taxpayers) approximately £400,000 (or 471,000€) just to advertise these positions in the pages of the Economist. By comparison, the ICTY advertise positions on free websites such as reliefweb, the UN network or its own website (www.icty.org).
It may be that this advertisement is indeed merely anecdotal. It may also be that the ICC has realized that to succeed it needs genuine managerial competence and that by putting such money up-front, it has increased its chance to attract the sort of people that it needs to revive the institution. Or it may be that the ICC suffers from institutional egomania? Whatever the answer, it is time for the ICC to promote transparency, not just financial/budgetary, but also in terms of allocations of those resources that are put at its disposal and to focus those resources onto its primary mandate, i.e., to investigate, prosecute and try criminal cases, not to create an inflated bureaucracy.
In that context, the allocations of resources between the various organs of the ICC is, well, intriguing. Sixty or so per cent of the 2009 budget goes to the Registry (60,222,700€) while the shares of the budget going to Chambers (10,332,100€) and the Office of the Prosecutor (25,528,910€) represent respectively about 10% and 25% of the budget. Together, the judicial and prosecutorial branches of the Court, therefore, cost almost half of what the administration of the Court (which, it should be said, covers the budget of defence teams) cost to the taxpayers of State Parties.
With only one trial to show for, half a billion euros is simply too much money to spend for a tribunal. £21,000 is just too much to recruit two administrators. Time perhaps for the Court to reconsider its priorities and to spend our money more wisely.
I agree with Prof. Mettraux’s considerations. The cost of International Justice is an old problem and since the ICTY opened its doors has dramatically increased. Certanily we cannot compare the costs of such tribunals with the one of a national court. In terms of budget,there is a great difference in prosecuting ordinary crimes, even the most serious, and crimes committed on a large scale, often in the context of an armed conflict (except probably in the McVeigh case before the US Federal Court). Investigations took place in several countries and International Tribunals don’t have their own enforcement agencies. There are some components that phisiologically increase the budget of such International Courts like protection and relocation of victims and witnesses, defence teams, security measures and last but not least cost of translations, often in more than two languages. If we compare the budget of the two courts (ICC and ICTY) I should agree with the conclusion of Maitre Mettraux. In six years of activity, four situations opened, and two cases on a trial stage, the ICC has not done that much, especially if we consider that none of these situations had been opened under art. 15 of the Rome Statute. I hope that in the future the ICC’s strategy will be more accurate and the Prosecutor will start some investigation using motu proprio powers.
The above analysis is extremely relevant in the context of the ICC and the ad hocs. There are a lot of financial absurdities which are intertwined with the other, more substantional issues with these courts. But one must not forget the overarching question, which is “isn’t international justice ALWAYS going to be too costly?” Indeed, as a model for justice, remote international courts such as the ad hocs and the ICC, and even if they are streamlined, will always face the costs of international personnel, high investigative costs and expensive handling of evidence as well as the bloated bureaucracy that always seems to follow the creation of an IO. In this sense, the hybrid model of international justice, which some see as on the way out with the advent of the ICC, is still a legitimate avenue to consider.
This is true, not only from a financial point of view, but from a substantial one too, but that’s another debate…
Perhaps someone could also write an article about the (un)fairness of (un)paid (UN) internships. It is a violation of the human right to dignity not to pay interns. Article 23 of the Universal Declaration of Human Rights, para 3: “Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.” Sure it will add to the costs, but arguably the remuneration would just be enough to cover an intern’s basic accommodation and food.
Dr. Mettraux,
I don’t necessarily disagree with your evaluation – but, to play devil’s advocate for a moment..
Firstly I will pick you up on your quoted ICC budget of eu101M. That’s what the Court asked for, sure, but the ASP, when approving this, cut it by 10%, to about 90M. So not as bad as you make out (although still quite bad).
As you say, the Registry absorbs most of that budget. True, (a small fraction of) that includes the Defence, but where is all the rest of the money going? Giovanni is quite right to point out the hefty cost of witness/victim relocation and other security measures as well as the costs of multi-lingual translations. Added factors that we don’t see at the ICTY include victim participation (the costs of which extend far beyond the courtroom) and an extensive outreach programme. Take a step back and you’ll see that the trials sit at the core of very extensive Rome “System” which aims to achieve much more than determine the accountability of a few individuals.
But, to focus on the trials for a moment – true, only one has started. This looks bad, but it’s easy to forget the complexity of the multi-layered provisions that the judges and various parties had to deal with in the early stages of the Court’s life. Lubanga and Katanga, at pre-trial, spent most of their time litigating procedural aspects of this novel legal monster – which brings me to the question, what is your claim of “much greater judicial activity” at the ICTY based on? If you totted up all the actual decisions – including procedural – at the ICC, then I’m sure you would be presented with a very different picture.
Now, Bemba (for example), has experienced much less wrangling over procedural issues. It seems clear enough that efficiency is increasing. Soon enough there will no doubt be a number of trials ongoing, but with a similar budget in place. Indeed there would be more trials ongoing now if States would/could show greater levels of cooperation with the Court.
But, alas, defend the Court’s spending as much as I can, the Economist advert is simply indefensible. Costs should be saved wherever there is opportunity to (indeed, I’m sure the money would have been much better spent on aggrieved Sara’s internship…).
I believe we need more information prior to reaching conclusions and condemning the ICC. In addition, the number of cases should not be indicative of the effectiveness of the court. Indeed, while the ad hoc tribunals are busy with numerous ongoing trials, the ICC’s complementarity regime might not translate into a similar judicial activity. In fact, the activities of the ICC are much more extensive than those of the ad hoc tribunals (in their cooperation with national judicial systems and other international organizations, and so on). Finally, while the ad hoc tribunals are geographically focused, the ICC’s reach is universal and is bound to cost more. The fact that it is a treaty based organization requires, as an example, that States meet once a year for Assembly sessions (whether this contributes the ICC to be an “inflated bureaucracy” or not needs to be seen). Therefore, it is not surprising to see that the costs are higher. However, I do agree with our estimed colleague that accountability demands that the public is informed about the ICC’s budget distribution.
For a comparison with the McVeigh trial (and other complex cases), see David Wippman, “The Costs of International Justice”, 100(4) ASIL 861-881 (2006).
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