Don’t ask and you won’t receive – Will the ICC request the resources it needs in 2019?

Drawing on their long experience of following the ICC’s annual budget process, Matt Cannock – Head of Amnesty’s Centre for International Justice – and Legal Adviser Jonathan O’Donohue call for a new approach in 2019, starting with the ICC putting forward a request that actually reflects its resource needs.

As the new ICC Presidency and Registrar take office, their most immediate challenge will be to work with the Prosecutor to tackle the Court’s capacity crisis, which has been caused by almost a decade of under-funding by states parties and under-budgeting by the ICC itself in order to appease its funders. If the ICC is to have any chance of addressing the backlogs in its current work, advancing an investigation in Burundi and effectively opening new investigations – possibly in Afghanistan and Myanmar – then this year it has to start asking and fighting for the resources it needs.

For almost a decade, the so-called ‘G7’ states – Canada, France, Germany, Spain, Italy, Japan and the UK – have pressured the Court not to come forward with significant budget increases. They have regularly called for zero-growth in the ICC’s annual budget, even when the number of preliminary examinations, investigations and cases have increased. When the ICC has asked for more, they have used their status as the largest funders to ensure that the Court’s request is cut before the budget is adopted. Therefore, in most years, after taking into account increases in staff costs and other inflation, additional investment in the ICC’s work has been minimal. Meanwhile, the ICC has sought to expand its efforts to address crimes in some new situations – although in most cases not fast enough.

With the power to plunge the ICC into a severe financial crisis by delaying or refusing to pay their assessed contributions, these seven states insist that the work of the ICC should be driven not by the demands on the Court to address impunity but on the resources they decide to allocate to it. Meanwhile, the other 116 states parties have allowed the Court to be pushed into a corner – appearing apathetic and failing to appreciate that the effectiveness and independence of the Court are at stake.

What is most concerning is that, in the face of such pressure, the ICC itself has become complicit in the crisis by scaling down on its budget requests. Rather than developing its annual request on rigorous, well-justified and full estimates of the resources it needs to perform its functions effectively, the Court appears to have developed its request based on a guess of what states are willing to pay.

Nowhere is this more clearly illustrated than the Office of the Prosecutor’s 2018 budget request. As part of a previous effort to convince states to invest more in its work, the Office issued in 2015 a Basic Size proposal which anticipated that that the Office would expand its activities over a number of years requiring a budget of €60 million by 2018. However, the proposal was shelved after a less than positive reception from states. In reality, the Office continued to try to expand its work as planned but ultimately requested €47 million in 2018, which can only be partly explained by the fact that the number of cases at pre-trial and trial were less than predicted in the 2015 proposal. Indeed, the Prosecutor continues to complain that a lack of resources is undermining the work of the Office. This may have led – in part – to accusations of one-sided and selective justice.

Similar trends of under-budgeting by the ICC can be seen in other areas. Following years of political pressure from states for the Court to severely restrict or reduce legal aid, which the Registry was too willing to oblige, the resources provided to the defence is now considerably lower than in other international criminal tribunals. This raises serious questions about the fairness of the proceedings. New investigations have been launched with minimal additional investment in vital functions such as outreach and giving effect to victims’ rights. Following the launch of the Georgia investigation in 2016, the Court requested only one junior field assistant who would be responsible for informing victims in the country about the work of the ICC; their rights and how to exercise them. The Georgia field office was ultimately opened following NGO outrage at the insufficient field presence.

The ICC’s approach of under-budgeting as a tactic to negotiate what it considers the best possible outcome in a challenging political climate is a bad idea for so many reasons that it is hard to address them all in one opinion piece. But briefly:

• If the ICC doesn’t ask, it cannot get the increases it needs. States may ultimately not agree to provide more resources, but they must then be held to account for this. By admitting defeat upfront, the ICC essentially assumes a key and willing role in underfunding itself.
• The Court wastes its one opportunity to set the agenda and tone of the budget process with a well-justified and properly costed budget request.
• Requesting insufficient increases because they may be more acceptable to states parties has proved ineffective. The Committee on Budget and Finance and zero-growth states have continued to make significant cuts each year to the ICC’s request despite the Court restricting its request. 
• It is unsustainable. By under-budgeting itself, the ICC is becoming more and more over-stretched in trying to meet ever-increasing demands, negatively affecting the scope, pace and quality of its work – and in turn its legitimacy. 
• It is not strategic. If the Court proposes an annual budget which it knows is not sufficient, it plays straight into the hands of the seven ‘zero-growth’ states – essentially reducing the budget process to a diplomatic negotiation. Without a credible request from the ICC, everything becomes negotiable, regardless of the consequences for the Court’s work. 
• It isolates the ICC in the budget process. Organizations like Amnesty International, which for many years advocated for the Assembly to provide the ICC with the resources it needs, find it impossible to support budget requests that fall so far short of achieving, and in fact undermine, their aims of ensuring the effective functioning of the ICC.
• The ICC opens itself to accusations of self-interest, lack of commitment and being out of touch with its mandate when it requests a budget to cover annual (obligatory) salary increases for its staff and judges but fails to request sufficient resources to deliver justice for victims who are among the most marginalized people in the world. 

As flawed as the ICC’s approach of under budgeting to appease states has been, we do have some sympathy for the leadership of ICC who clearly fear that, should they ask for what they actually need, they will be unsuccessful and humiliated in the process by the lack of state support – which could weaken the Court. The Court is also understandably cautious that a request for a significant increase may be dealt with more harshly by states parties who may have a negative reaction to the Court’s request, leading to a worse outcome. 

However, considering that underfunding the ICC essentially means delaying or denying justice for victims of horrific crimes and weakening the functioning and perceived independence of the Court, we must expect more of the leadership of the ICC. Their unique positions of power, responsibility and privilege demands unwavering conviction in the pursuit of their mandates, including standing up to states parties when their actions threaten the scope and effectiveness of the Court’s work. 

International justice is not cheap and part of states’ concern is no doubt to ensure that costs do not spiral out of control. But there must be more sophisticated and effective ways of managing the costs of international justice – such as maximizing efficiencies, finding synergies, having more flexibility of resources to meet specific demands at specific times, or securing more effective state cooperation in key areas (for example witness protection) – than simply starving the ICC of the resources it needs to implement the mandate it was created to achieve.
There also comes a point when states’ expectations of the costs of international justice must be tested against their rhetorical commitments towards ending impunity and striving for a world where the rule of law trumps political power. The ICC has now reached that point. A failure to address the Court’s capacity crisis in the next years will only lead to further poor performance, selectivity and damaging criticism of international justice.  Even though the crisis is not primarily of the ICC’s own making, no progress can be made unless the Court puts forward a well justified and properly costed budget request and advocates tirelessly for the resources it needs over the next years. If states ultimately refuse to provide the ICC with the resources it needs to function effectively, the failures of international justice will be theirs – not the ICC’s.