The 2023 Budget – The True Test of State Parties’ Support for the ICC

In this final opinion piece in the series, Amnesty International considers the Court’s budget request for 2023 and argues that, if states parties are truly committed to strengthening the work of the ICC, they will support the significant increase requested and engage in a genuine discussion with the Court about its longer-term resource needs.

Previous articles in this series have focused on the ICC’s capacity crisis and the risks posed by the Prosecutor’s campaign for voluntary contributions and secondments for the independence and long-term effectiveness of the Court. However, as the 2023 Budget request of the ICC confirms, voluntary contributions to the OTP’s Trust Fund and secondments alone will not come close to providing an effective way forward.

The ICC’s 2023 Budget and the Committee on Budget and Finance’s Recommendations

The ICC has requested a significant increase of €32 million in its 2023 budget proposal. This would bring the total annual budget of the Court for next year to €183 million, based on the Court conducting activities in 16 situations, including at least ten active investigation and three trials.

Significantly, the request includes an additional €13.2 million for the OTP – on top of the voluntary contributions and secondments received this year – to support its investigations and other areas of its work. It also includes additional resources for the Chambers, Registry and other parts of the Court to respond to the increase in the OTP’s capacity and the Court’s workload.

Until recently, an increase of this amount was unthinkable. After the Court’s request for an increase of €22 million in 2016 towards implementing its Basic Size model was largely rejected, the Court has been frustratingly timid in its budget requests.

Not only does the Court seem to have found new confidence to ask for a major increase, but the Assembly’s Committee and Budget and Finance, which has traditionally supported only limited increases in the Court’s budget following its technical examination, has recommended that the Assembly approve most of the increase requested – €25.5 million for the Court, including €11.7 million for the OTP. This would far exceed any increase since the establishment of the Court and bring the annual budget for 2023 to €176.8 million (an increase of 16.5%).

The full recommendations of the Committee have yet to be released, but a summary provided by the Chair of the Committee on 29 September recognized that the need for additional resources is driven by:

• The unavoidable increase caused by inflation and the impact of the United Nations Common System (which sets staff salaries and benefits); and
• The establishment of four new active investigations (Palestine, Philippines, Ukraine and Venezuela) and having in 2023 at least three parallel trials lead to additional cost.

The Assembly’s consideration of the Budget

The big question now is how the biggest funders will respond to the Committee’s recommendations in the lead up to the next session of the Assembly. While it is hoped that the Assembly will support the increase recommended by the Committee, in the past, the biggest funders have demanded further arbitrary cuts to the annual budget when they did not think that the Committee’s recommendations went far enough.

Such efforts would further undermine the integrity of the budget process and could place the Prosecutor in a very difficult position by forcing him to scale back further on his Office’s planned work in some situations. At a time when there are so many expectations from western states for the Prosecutor to advance the investigation in Ukraine, the Court would likely lose support from these states parties if it does not prioritize the allocation of a reduced increase in resources for that investigation, while the Court’s independence could be questioned if the OTP prioritizes the Ukraine situation at the expense of other investigations.

In the event that the biggest funders seek to go beyond the Committee’s recommendations, it will be up to other states parties that are committed to a just, fair and effective ICC to take a stand to protect the effectiveness and independence of the ICC. Their silence in the budget process so far will need to be broken. They may face arguments that an increase in the budget is not necessary in light of the voluntary contributions and secondments that have been committed to the OTP. However, as the Chair of the Committee on Budget and Finance has noted, voluntary contributions and secondments are “complementary and supplementary to the core resources requested in the 2023 Proposed Programme Budget”.

Based on past experience, major funders may also threaten that, unless further cuts are made, they will not pay their assessed contributions to the budget in full or delay payment in protest, which would drive the Court into a deeper financial crisis. Any such efforts should be called out as bad faith efforts to politically control the work of the Court. If necessary, states parties should call for a vote on the Committee’s recommendations, over a compromise that will weaken the functioning of the Court.

The Need for a Genuine Discussion on the Long-Term Resource Needs of the Court

If the Assembly approves a budget of €176.8 million for 2023, it would be a tremendous result for the ICC. However, further investment will still be necessary in the next years to address the capacity crisis and guarantee the independence of the Court.

Of the €25.5 million increase, a third – €8.4 million – will be allocated to increases in staff costs as a result of inflation. The proposed budget for 2023 still falls well short of the €206 million estimated by the Court to achieve the Basic Size proposed in 2016, which covered six, not ten active investigations. A closer examination of the 2023 Budget request reveals that the Court has still made difficult choices that could affect its effectiveness and independence.

This is most strikingly reflected by the decision of the Prosecutor to allocate the new Ukraine investigation almost five times the resources of the new Palestine investigation. That is not to say that all investigations will require the same level of resources each year or that some level of prioritization between investigations will not be required. However, the Prosecutor’s decision to prioritize resources for investigations in Ukraine, which enjoys broad support from the biggest funders of the Court, compared to the allocation of less than €1 million to the Palestine investigation, which has been openly opposed by Canada, Germany, and the UK, is not a good look.

To be clear, the question here is not whether too many resources have been allocated to the Ukraine investigation. After decades of observing the OTP attempting highly complex investigations on a shoestring, it is encouraging to see the OTP conduct large-scale investigations that will hopefully comply with international standards of promptness, thoroughness and effectiveness. However, the aim must be to apply this approach to all investigations, without delay.

Dialogue and action must therefore continue towards achieving a shared vision of the ICC and ensuring sufficient resources for the Court to operate justly, fairly and independently. The 2020 Independent Expert Review of the ICC recommended:

A discussion among stakeholders (Court, States Parties and civil society) should be convened on the strategic vision of the Court for the next ten years, which will enable the Court and the ASP to focus their efforts of implementing the Rome Statute in the same direction. An outcome of the discussion should be agreeing on the level of activity that the Court is expected and desired to reach in ten years’ time and the steps (resources, cooperation and institutional development) that needs to gradually occur for the organisation to reach that point.

Building on the progress and momentum that will hopefully be established this year, the Assembly should prioritize accelerating this process.