Commodifying Global Justice: Economies of Accountability at the International Criminal Court

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Accepted for publication with the Journal of International Criminal Justice, special issue on global justice edited by Sarah Nouwen and Wouter Werner (forthcoming 2015)

Commodifying Global Justice:

Economies of Accountability at the International Criminal Court

Sara Kendall∗

1. Introduction

I believe [the court] is an excellent investment in the rule of law, sustainable peace, and long-term stability. -Sang-Hyun Song, President of the International Criminal Court1 The return on our investment for what others may today consider to be a huge cost for justice is effective deterrence and saving millions of victims’ lives. - Fatou Bensouda, Prosecutor of the International Criminal Court2

Political economy, or the mutually constitutive relationship between political interests and

material conditions, has remained largely absent from mainstream literature on international

criminal law. In a field that produces ambitious claims about its purpose – ‘ending impunity’,

preventing future violence, and redressing the suffering of conflict-affected individuals –

international criminal law’s material conditions of possibility remain a relatively under-

explored topic. To date such concerns have largely appeared within the policy discourse of

court officials, state representatives, and civil society proponents who promote ‘investing’ in

international criminal law as a means to various ends, as is evident in the above statements

from International Criminal Court (ICC) officials. Within these professional communities,

both political interests and material conditions are often presented as limits to be overcome

through fostering an apolitical and well-resourced legal field. Yet the relationships between

political interests and material conditions undergird the production of international criminal

∗ Lecturer, Kent Law School, University of Kent, Canterbury. Some early thoughts on this topic were presented at the International Studies Association Annual Meeting in 2012, where Marlies Glasius and Ruti Teitel provided helpful commentary; Christian De Vos and Nesam McMillan offered useful suggestions on the subsequent article. The author would like to thank the editors of this special issue, Sarah Nouwen and Wouter Werner, as well as the anonymous reviewers for their excellent points. 1 President Song’s opening remarks at the ‘The Law and Practice of the International Criminal Court: Achievements, Impact and Challenges’ conference, 26 September 2012, The Hague, author’s notes. 2 Fatou Bensouda’s statement, ‘Ceremony for the solemn undertaking of the Prosecutor of the International Criminal Court’, The Hague, 15 June 2012, available online at http://www.coalitionfortheicc.org/documents/H.E._Fatou_Bensoda_Solemn_Undertaking-1.pdf (visited 19 March 2014).

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law, and they form as much a part of the field’s millennial rise as its developing body of

jurisprudence.

Critical scholarship in international law more broadly has contended that politics and

economics are ‘intertwined projects’ that bear upon the juridical field.3 This article aims to

bring political economy more centrally into scholarly discussions within and about the field of

international criminal law. The field is deeply imbricated with a stakeholder economy that

narrows and commodifies a particular conception of ‘global justice’ as individual criminal

accountability. As the editors of this special issue contend, advancing international criminal

law as ‘global justice’ narrows the field of possible responses to mass violence, undercutting

alternate approaches and privileging a view of justice that dwells heavily in the symbolic

order.4 In this dominant order, justice is figured as a punitive response to crime: ‘ending

impunity’ through trials serves as a common trope within the field of international criminal

law. Furthermore, claims about the field as a form of ‘global justice’ invoke a moral economy

of universalist sentiment and humanitarian reason.5 For example, the ICC’s first prosecutor

has claimed that ‘[m]y mandate is justice; justice for the victims’6 and his successor has

insisted that ‘politics have no place and will play no part in the decisions I take’.7 Such claims

are mobilized as ongoing justifications for the field’s value as a social good while also

representing it as an apolitical site of redress for victim communities.8 They present a one-

3 D. Kennedy, ‘Law and the Political Economy of the World’, 26 Leiden Journal of International Law (2013) 7-48, at 8. See also M. Fakhri, ‘Law as the Interplay of Ideas, Institutions, and Interests: Using Polyani (and Foucault) to ask TWAIL questions’, 10 International Community Law Review (2009) 455-465. For more extended treatments of international law’s imbrications with power, see for example B. Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (New York: Routledge-Cavendish, 2008), M. Koskenniemi, The Politics of International Law (Oxford: Hart Publishing, 2011); S. Marks (ed); International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge University Press, 2008); and B. Rajagopal, International Law from Below: Development, Social Movements, and Third World Resistance (Cambridge: Cambridge University Press, 2003). 4 For a more detailed account of the symbolic currency of this field, see K. Clarke, Fictions of Justice: the International Criminal Court and the Challenges of Legal Pluralism in Sub-Saharan Africa (Cambridge: Cambridge University Press, 2009). 5 On the increasing role of moral sentiments in contemporary forms of governance, see D. Fassin, Humanitarian Reason: A Moral History of the Present (Berkeley: University of California Press, 2012). 6 ICC Press Release, ‘ICC Prosecutor Visits Egypt and Saudi Arabia’ (ICC-CPI-20080509-MA13), 10-14 May 2008, available online at http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/press%20releases%20(2008)/Pages/press%20release%20media%20advisory_%20icc%20prosecutor%20visits%20egypt%20and%20saudi%20arabia.aspx (visited 19 March 2014). 7 Statement of Prosecutor Fatou Bensouda to the 12th Assembly of States Parties, The Hague, 20 November 2013, available online at http://icc-cpi.int/iccdocs/asp_docs/ASP12/ASP12-OP-Statement-PROS-ENG-FRA.pdf (visited 19 March 2014). Emphasis in original. 8 For an account of how the moral force of international criminal law is mobilized, see K. Clarke, ‘The Rule of Law Through Its Economies of Appearances: The Making of the African Warlord’, 18(1) Indiana Journal of Global Legal Studies (2011) 7-40. For a critique of claims made on behalf of victims, see S. Kendall and S.

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dimensional account of international criminal law that mirrors a Kelsenian ‘pure’ theory of

law, immune from the political influence of strong states and entities such as the United

Nations Security Council.9 By contrast, turning to the field’s political economy reveals the

diverse array of actors, interests, and material limits that inform its work in practice.

As international criminal law’s only permanent institutional form, the ICC presents a

revealing case study of the field’s political economy. In reading the work of the ICC in this

way, foregrounding its political interests and material conditions of possibility, this article

attempts to move beyond an economic determinism that would reduce law and politics to the

superstructure of an economic base.10 When states and other actors turn to an international

criminal legal institution as a response to mass conflict, this turn reflects a combination of

ideological presuppositions about justice in addition to economic and political interests.11

These overlapping dimensions contribute to the production of the field of international

criminal law. The intersection between them is reflected in a statement reportedly made by

former ICC prosecutor Luis Moreno Ocampo at the annual meeting of the Assembly of States

Parties (ASP) during his tenure in 2011:

‘This year it is not just a money issue it is a political issue. How much interest [states parties] have in global justice and the prevention of crime through justice,’ said Moreno-Ocampo, who stressed the ICC’s role in deterring conflict.12

Ocampo raised the issue of the political interest of ICC states parties in providing financial

support for what he explicitly calls ‘global justice’. As the then-prosecutor claimed, the

pursuit of ‘global justice’ as an ideological form is bound up with both political and economic

Nouwen, ‘Representational Practices at the International Criminal Court: the Gap between Juridified and Abstract Victimhood’, 76 (3-4) Law and Contemporary Problems (2014) 235-262, and L. Fletcher, ‘Refracted Justice: the Imagined Victim and the International Criminal Court’, in C. De Vos, S. Kendall and C. Stahn (eds), Contested Justice: the Politics and Practice of International Criminal Court Interventions (Cambridge: Cambridge University Press, forthcoming 2015). 9 For an account that problematizes these claims to apolitical neutrality, see S. Nouwen and W. Werner, ‘Doing Justice to the Political: the International Criminal Court in Uganda and Sudan’, 21 (4) European Journal of International Law (2010) 941-965. On the political dimensions of the Kenyan situation, see S. Kendall, ‘UhuRuto and other Leviathans: the International Criminal Court and the Kenyan Political Order’, 7(3) Journal of African Legal Studies (2014). 10 See generally L. Althusser, ‘Ideology and Ideological State Apparatuses (Notes towards an Investigation)’, in Lenin and Philosophy and Other Essays (New York: Monthly Review Press, 1971), 127-186. Althusser viewed the economic, ideological, and political-legal fields as interconnected: ideas and representations have a material existence that manifests in practices. In this way, subjects submit themselves to the ritualized practices of (positive) law by virtue of a belief in the idea of justice. 11 On the field’s ideological operation, see T. Krever, ‘International Criminal Law: An Ideology Critique’, 26 Leiden Journal of International Law (2013) 701-723 and T. Krever, ‘Dispensing Global Justice’, 85 New Left Review (2014) 67-97. 12 ANP/AFP, ‘ICC prosecutor warns cash cuts put probes at risk’, 17 December 2011, available online at http://www.rnw.nl/africa/bulletin/icc-prosecutor-warns-cash-cuts-put-probes-risk (visited 19 March 2014).

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considerations. At the time of Ocampo’s statement in 2011, the court was faced with the

prospect of budgetary reductions despite the increasing number of situations before it.13 The

potential of the reduced budget is thus presented as an existential threat to the ICC. Ocampo

explained to his interviewer: ‘If [states parties] decide to reduce the budget, there will be less

cases and less investigations’; he added that ‘With no money maybe the court will look less

impartial’.14

The court’s then-prosecutor not only presented the prospect of a reduced budget as a threat to

the ICC’s operations; he also claimed that it could threaten perceptions of the court’s fairness,

a fundamental normative value of the legal field. Ocampo’s claim thus begs a number of

questions. Is international criminal accountability so fragile an enterprise that it risks being

undone by the vicissitudes of the global economy and shifting state interests, as Ocampo

seems to suggest? How do budgetary limits affect the work of the court in practice? In

response to these claims of financial vulnerability, how is the ideological form of ‘global

justice’ promoted in institutionalized sites such as the ICC? What is the court’s political

constituency, and does this constituency exceed or reflect its member states that fund its

activity?

Beginning from the presumption that the field of international criminal law operates on

multiple overlapping registers – including the ideological, the economic, and the political –

this article focuses on the relationship between political interests and material conditions at

the site of the ICC. Drawing upon interviews of participants in the ICC’s political economy

within and outside the court in Kenya and Uganda, observation of Assembly of State Parties

annual meetings and of the broader Hague-based international criminal law community, as

well as on policy documents and scholarship concerning the court’s work, this article seeks to

explore the role of political actors and their interests as well the material limits of the ICC in

practice. It first considers what the funding structure of the court reveals about its political

constituency. It then addresses the implications of considering states as ‘shareholders’ in the

court’s work, as well as the role of less formalized economic relationships, both in terms of

financial support for the court as well as labor carried out on its behalf. Moving to the level of

practice, the article then examines several sites where the ICC’s ethos of austerity strains what

13 The term ‘situation’ appears in the ICC’s Rome Statute – ‘a situation in which one or more of the crimes within the jurisdiction of the Court appear to have been committed’ (Article 14 ICCSt; see also Article 13) – but the term remains undefined. See R. Rastan, ‘The Jurisdictional Scope of Situations Before the International Criminal Court’, 23 Criminal Law Forum (2012) 1-34. 14 Supra note 12.

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international criminal law can claim to deliver. It concludes with some observations

concerning the risks of promoting international criminal law as ‘global justice’, in line with

the objectives of this special issue.

2. Shareholders of ‘Global Justice’

International trials are expensive and they should always be an exception, never the rule. Especially in these difficult times for the world economy, the ICC member states understandably keep a tight rein on the Court’s budget…15

International criminal tribunals are costly in light of the limited number of individuals that

they try.16 Meanwhile, proponents of international criminal courts and tribunals assert that

they offer ‘high dividends for a low investment’17 through holding a limited number of

individuals accountable for breaches of international criminal law. Tribunal supporters draw

upon a number of claims about the deontological merits of accountability, the deterrent effects

of trials, and the ability of states to pursue transnational security interests. As current

prosecutor Fatou Bensouda claimed above, the ‘return on our investment’ is ‘effective

deterrence and saving millions of victims’ lives.’18

International criminal law has adopted a neoliberal orientation, in the sense that neoliberalism

draws market-based rationalities into traditionally non-market based domains.19 Here juridical

15 Judge San-Hyun Song, ‘From Punishment to Prevention: Reflections on the Future of International Criminal Justice’, University of New South Wales, Sydney, 14 February 2012, available online at http://www.icc-cpi.int/NR/rdonlyres/29D0B2A7-71D4-457A-B9A3-9AC4E78DD968/284266/120214ICCPresidentUNSWWallaceWurthmemoriallecture.pdf (visited 19 March 2014). 16 According to the UN Secretary-General, the ad hoc tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) were consuming roughly 15 percent of the total budget of the United Nations as of 2004. See United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary-General, UN Doc. S/2004/616, 23 August 2004. International legal scholars have estimated that individual trials at the ICTR and ICTY have cost somewhere between $10 and $25 million dollars each. Rupert Skilbeck has argued that trials at the ICTY and ICTR have cost between $10 and $15 million per accused. Mark Drumbl has noted that convictions at the ICTR cost in the region of $25 million. See R. Skilbeck, ‘Funding Justice: The Price of War Crimes Trials’, 15(3) Human Rights Brief (2008) 6, and M. Drumbl, ‘Collective Violence and Individual Punishment: the Criminality of Mass Atrocity’, 99 Northwestern University Law Review (2005) 539-610. Trials at the so-called ‘hybrid’ Special Court for Sierra Leone (SCSL) have cost roughly the same; Charles Jalloh claims that the Special Court for Sierra Leone has spent roughly $23 million per trial. See C. Jalloh, ‘Special Court for Sierra Leone: Achieving Justice?’, 32 Michigan Journal of International Law (2011) 395-460. Cherif Bassiouni asserts that the ICC has spent roughly $39 million per indictment. See M. C. Bassiouni, Introduction to International Criminal Law: Second Revised Edition (Leiden: Brill, 2013), 1031. 17 Former ICTY prosecutor Carla Del Ponte, ‘The Dividends of International Criminal Justice’, 6 October 2005, available online at www.icty.org/x/file/Press/PR_attachments/cdp-goldmansachs-050610-e.htm (viewed 19 March 2014). 18 Bensouda, supra note 2. 19 See M. Foucault, The Birth of Biopolitics: Lectures at the College de France, 1978-1979 (New York: Palgrave Macmillan, 2008), at 243: ‘analysis in terms of the market economy or, in other words, of supply and

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institutions – and even justice itself – are depicted as commodities for entities such as states to

invest in. Yet conceptualizing international criminal law in this way sidelines its

representation as a public good. The public value of the field is itself a debatable claim, but

conceptualizing it as a public good rather than as a commodity preserves a space for

contesting its social value within the public realm rather than within an economy of private

interests. As Sarah Nouwen and Wouter Werner argue in this issue, the monopolization of the

term ‘global justice’ by the field of international criminal law forecloses debates regarding the

meaning of justice. One way in which this transpires is through presenting international

criminal law as a commodity – within the realm of private interests – rather than as a public

good subject to the scrutiny of its political constituency.

Here it is helpful to briefly turn to the work of Hannah Arendt in order to bring tacit

assumptions about a commodified version of ‘global justice’ into relief against a backdrop

that suggests justice could be framed differently. When Arendt’s work is invoked in

international criminal law, it is usually to draw upon her argument about the perils of

expanding the purpose of international criminal trials beyond criminal accountability.20 As

Jan Klabbers has noted, it has become somewhat de rigueur to turn to Arendt to help

illuminate contemporary political issues, with its attendant risks.21 Yet her contributions to

theorizing the distinctions between the public and the private are useful for showing the

implications of treating international criminal law as a public good or as a commodity for

interested parties to invest in.

Arendt explores the distinction between the economic and the political in her expansive

theoretical work The Human Condition, showing their etymological origins in the classical

Greek distinction between the oikos (household) and the polis (the public realm). The sphere

of the oikos-economy was oriented toward securing the conditions of possibility of life, but it demand, can function as a schema which is applicable to non-market domains.’ For a more contemporary critique of the ‘marketisation’ of society, see M. Sandel, What Money Can’t Buy: the Moral Limits of Markets (New York: Farrar, Straus and Giroux, 2012). 20 Arendt famously claimed that ‘the law’s main purpose’ was ‘to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.’ H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin Books, 1994), 253. For an example of Arendt’s uptake in the field, see W. Schabas, ‘The Contribution of the Eichmann Trial to International Law’, 26(3) Leiden Journal of International Law (2013), 667-699. 21 J. Klabbers, ‘Hannah Arendt and the Languages of Global Governance’, in M. Goldoni and C. McCorkindale (eds), Hannah Arendt and the Law (Oxford: Hart Publishing, 2012) 229-247. Among these are the risks of anachronism and false attribution; as Klabbers notes, ‘While Arendt pleaded passionately in favour of an international criminal tribunal, it is difficult to imagine that she would be very impressed by the International Criminal Court as it now exists’ (236).

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was relegated to the private realm, removed from the scrutiny of the public ‘space of

appearance’ made possible through human plurality and collective action. By contrast, the

polis was where political decisions were taken and where actions were subjected to the

scrutiny of the community out of which the polis was constituted.22 Arendt’s distinction

between the economic and the political helps to reveal how much of the discourse deployed

by international criminal law’s proponents suggests a preoccupation with the oikos – the

field’s economic conditions of possibility, a matter relegated to the private realm of necessity

rather than to the public realm of debate, contestation, and political action. Thinking through

this distinction also raises the problem of how a political order that can assess and debate the

ICC’s value as a public good might be constituted, and who might be considered a member of

that order (the international community as a whole? the collective of states parties? members

of the United Nations Security Council?). When the ICC prosecutor invokes a ‘return on our

investment’, this begs the question of what sort of constituency is summoned to reflect on

whether ‘we’ are gaining value through the court’s work, as Immi Tallgren’s intervention in

this issue illustrates.23 Concerns with funding and investment foreground a preoccupation

with the private realm; by contrast, attending to the public realm entails asking about the

membership of the constituency that produces the conditions of possibility of international

criminal law, as well as the political contestations within and about that community, such as

whose interests they claim to represent and the extent to which they are advancing the public

good through projects such as the ICC.

These questions offer ways of ‘re-politicising the international’24 during a time when

international criminal law is presented as an apolitical field and when its discursive forms

adopt a neoliberal rationality. Some proponents disavow the ICC’s political origins and

effects, as in Bensouda’s claim that ‘politics have no place’ in her work; meanwhile,

contemporary formations of international criminal law are characterized by the rise of a

‘shareholder’ logic. As Christine Schwöbel has argued, the field promotes its own perpetual

22 See generally H. Arendt, The Human Condition (Chicago: University of Chicago Press, 1958). Arendt claims that ‘[t]he polis, properly speaking, is not the city-state in its physical location; it is the organization of the people as it arises out of acting and speaking together’ (198); in this sense she emphasises the political as an intersubjective space of human action. 23 On the importance of theorizing claims to membership, see also I. Tallgren, ‘Who are “we” in international criminal law? On critics and membership’, in C. Schwöbel (ed), Critical Approaches to International Criminal Law (New York: Routledge, 2014) 71-95. 24 See F. Hoffmann, ‘Facing the Abyss: International Law Before the Political’, in M. Goldoni and C. McCorkindale (eds), Hannah Arendt and the Law (Oxford: Hart Publishing, 2012) 173-190, at 187.

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growth through branding and marketing.25 Marketing practices are particularly evident where

tribunals are funded through voluntary contributions by interested states. The field has been

the site of various forms of ‘donors’ justice’, or third-party financial support for the work of

international criminal tribunals.26 For example, the former prosecutor of the Special Court for

Sierra Leone explained how the work of the court was presented to state donors in order to

secure financial contributions:

Those involved with the court would essentially put together a plan and go to world capitals saying, ‘This is what we want to do. If you think it is important, contribute your tax money to this cause. Here is our budget for this year, next year, and the following year. If you provide us with contributions to meet this budget, you will see this quantity of justice.’27

The former SCSL prosecutor suggests a proportional relationship between funding and

justice, which bears similarities to former ICC prosecutor Ocampo’s claim of a link between

economic resources and impartiality. These claims presume that justice and fairness –

seemingly fundamental normative values – are subject to the vicissitudes of the global market

and the interests of state stakeholders. Furthermore, they present international criminal law

institutions as investments: in Ocampo’s words, investments ‘in global justice and the

prevention of crime through justice’.28

In its agreed budgetary structure, the ICC charted a new path with implications for its

constituency, or put another way, for which states may claim membership among its donors.29

Unlike temporary tribunals such as the SCSL, whose budget was supported by states on a

voluntary basis, the permanent ICC enjoys greater financial stability. The ICC also diverged

from the funding format supplied to the ad hoc tribunals for Rwanda and the former

Yugoslavia, which were funded directly through the UN’s general budget.30 Observers noted

25 C. Schwöbel, ‘The Market and Marketing Culture of International Criminal Law’, C. Schwöbel (ed), Critical Approaches to International Criminal Law: An Introduction (London: Routledge, 2014) 264-280. 26 S. Kendall, ‘“Donors’ Justice”: Recasting International Criminal Accountability’, 24 Leiden Journal of International Law (2011) 585-606. 27 S. Rapp, ‘The Compact Model in International Criminal Justice: the Special Court for Sierra Leone’, 57 Drake Law Review (2008-2009) 11-48, at 21. For an account of these marketing practices, see S. Kendall, ‘Marketing Accountability at the Special Court for Sierra Leone’, in C. Jalloh (ed) The Sierra Leone Special Court and its Legacy: the Impact for Africa and International Criminal Law (Cambridge: Cambridge University Press, 2014). 28 Supra note 12. 29 To be sure, court officials often claim that it acts on behalf of a number of different (political) constituencies, whether the ‘international community’ or ‘the victims’. See Kendall and Nouwen, supra note 8. 30 C. Romano, ‘International Courts and Tribunals: Price, Financing and Output’ in S. Voigt, M. Albert, and D. Schmidtchen (eds), International Conflict Resolution (Tübingen: Mohr Siebeck, 2006), 189-245, at 220.

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that the court’s funding was discussed relatively late in the negotiating process.31 In the early

drafting stages of the court’s statute, the International Law Commission (ILC) had proposed

either directly funding the court through the budget of the United Nations (as with the ad hoc

tribunals) or through states parties to its founding treaty.32 According to the ILC, proponents

of UN funding ‘felt it was necessary, given the nature of the crimes over which the court

would exercise jurisdiction, to make it possible for all States to initiate proceedings without

financial burdens – an objective which could not be achieved if only the States parties to the

statute were to contribute to the financing of the institution’.33 This arguably would have

made the court more representative of and accessible to all UN member states regardless of

their financial circumstances, and thus more ‘global’ in its orientation and possible

interventions. Some civil society advocates preferred this financial arrangement because of

the broader constituency that it would imply. According to Amnesty International, for

example, funding the court through the UN budget would ‘enhance its universal character….

It is appropriate to have the General Assembly fund the court as part of the regular UN budget

since the court will be acting on behalf of the entire international community.’34 Observers of

the drafting process noted that ‘[v]iews expressed in favor of a budget funded exclusively by

the UN were based, among others, on the argument that, since the Court would act on behalf

of the entire international community, it was more appropriate that the UN should bear the

costs’.35

The conclusion eventually reached by the Rome Statute’s drafters, however, was to require

states parties to fund the court’s budget, with some provisions for voluntary contributions.36

31 Maarten Halff and David Tolbert claimed that ‘the way in which the Court was to be funded did not enter the foreground of the discussions until the last session of the Preparatory Committee (March-April 1998)’; see M. Halff and D. Tolbert, ‘Article 116 Voluntary Contributions’ in O. Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Second Edition, Oxford: Hart Publishing, 2008), 1715-1718, at 1715. 32 Summary of Proceedings of the ad hoc Committee During the Period 3-13 April 1995, UN Doc. A/AC.244.L.2, §136. 33 Ibid. 34 Amnesty International, The International Criminal Court: Making the right choices – Part IV: Establishing and financing the court and final clauses, March 1998, available at http://www.amnesty.org/en/library/asset/IOR40/004/1998/en/6b9d9776-f000-40e2-ae29-2006d9785e2c/ior400041998en.html (visted 19 March 2014). 35 Halff and Tolbert, supra note 31, in chapter ‘Article 15 Funds of the Court and of the Assembly of States Parties’ 1705-1714, at 1712. 36 Article 116 of the Rome Statute concerns voluntary contributions. However, commenters noted that ‘[a] too heavy reliance on voluntary donations could lead or could be perceived to lead to an undue dependence on affluent States or other parties. The underlying argument is that an international organization should be able to carry out all its mandated functions with use of the assessed contributions provided by its members. This argument carries even more weight for an international judicial organ, for which independence and impartiality are crucial.’ See Halff and Tolbert, supra note 31, at 1717.

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The ICC is thus mainly funded through assessed contributions from its member states,

drawing upon the same formula used by the United Nations to determine contribution

amounts. A UN-funded court would have suggested a constituency of all member states of the

United Nations irrespective of their consent to the treaty – a broader political community to

which the court could have been accountable, as compared to the narrower frame of its states

parties. The ICC’s funding structure thus carries implications for the ‘globality’ of ‘global

justice’: it circumscribes which states assume financial responsibility for the court’s operation

based upon their elective membership within the system.

Insofar as states remain parties to the court’s statute, they are required to fund its work.

However, the elective nature of their involvement also produces a role akin to a shareholder

evaluating an investment. At the annual Assembly of States Parties (ASP) meeting in 2012,

for example, one state representative claimed that states parties should be central to certain

ICC discussions because ‘we pay for the court’.37 This state representative suggests that

providing financial support to the ICC entitles states parties to oversee aspects of the court’s

operation. At the following ASP in 2013, another state representative asserted that ‘if the

Office of the Prosecutor is to retain our confidence and to receive additional funding it is

imperative that the prosecutorial functions are carried out with restraint and discipline and

with due regard to the essential role of the Prosecutor which is to serve the court’.38 Such a

relationship between funding and performance is familiar in the context of a private corporate

structure, but when the ‘product’ is presented as international – or indeed ‘global’ – justice,

the constituency summoned through this funding framework appears partial and uneven. For

example, states whose assessed contributions are relatively high may feel that the court ought

to be more answerable to them for its expenses. Some of the ICC’s key contributors have

attempted to push for a policy of ‘zero nominal growth’ of the court’s budget despite the

addition of new situations and cases.39 This push for austerity by many of the court’s main

37 11th Annual Meeting of the Assembly of States Parties, The Hague, 21 November 2012, side event on victim participation, intervention by Slovenian representative, author’s notes. 38 Statement by New Zealand, 12th Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, The Hague, 21 November 2013. 39 For example, key contributors such as Japan, Germany, the United Kingdom, France and Italy were pushing for a ‘zero nominal growth’ approach in 2011. Japan became the ICC’s largest contributor when it acceded to the Rome Statute in 2007, at which time it provided 22% of the court’s budget. See ‘Statement by H.E. Mr. Takahiro Shinyo, Deputy Permanent Representative of Japan’ to the UN General Assembly, 1 November 2007, available online at http://www.iccnow.org/documents/Japan.pdf (visited 19 March 2014).

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contributors met substantial resistance from civil society organizations and court officials,

who maintained that it would strain the court’s ability to meet its mandate.40

As the ICC’s effective ‘shareholders’, states parties vote on the court’s budget each year at the

ASP meetings. These meetings thus become a site for demonstrating the value of the court as

an investment, which has resulted in court officials making similar appeals and assurances to

states parties as the former SCSL prosecutor made to that tribunal’s voluntary contributors. At

the 2013 ASP, for example, the court’s Registrar sought to reassure the court’s constituency

that their investments were well managed: ‘As States Parties, you entrust the Court with

making optimal use of the resources you grant us every year’.41 The court’s President

elaborated:

We have tried to maximize the pace and efficiency of proceedings within tight budgetary margins. The latest expenditure forecast which has been provided to you shows that the ICC has indeed been very rigorous in implementing its budget, to the extent that we have slightly overshot our savings target. I believe therefore that we have been responsible managers of the funds which the States Parties have provided.42

Managerial language is threaded throughout the annual ASP meetings, where improving

efficiency is widely addressed by court officials and state representatives. The ‘zero nominal

growth’ discussion has been largely replaced through a turn to the discourse of efficiency

adopted by all parties, with the court seeking to reassure its state ‘shareholders’ that it is

40 Coalition for the International Criminal Court, ‘Global Coalition Calls on States to Maintain Financial Commitment to the ICC’, Press Release, 8 July 2011, available online at http://www.iccnow.org/documents/CICC_PR_Budget_FINAL_08072011_(1).pdf (visited 19 March 2014); see also J. O’Donohue, ‘The Cost of Trying to Deliver International Justice on a Shoe-String’, Coalition for the ICC Europe Update. Compared to the 2011 budgets of the International Criminal Tribunal for the former Yugoslavia (ICTY) at US $145 million and the International Criminal Tribunal for Rwanda at $117 million, each dealing with the equivalent of a single situation, the ICC’s 2011 budget of roughly $149 million (€103,607,900) was stretched across situations in seven countries following the addition of Côte d’Ivoire in mid-2011. President Song argued before states parties representatives that ‘the search for efficiencies and economies must be realistic. For example, while I understand the concerns of the States Parties who have argued for a zero nominal growth budget, I have to say plainly that imposing such a budget in 2012 would be profoundly damaging to the Court’s ability to deliver fair and expeditious justice.’ See ICC President San-Hyun Song, ‘Remarks to the Assembly of States Parties’, 10th Session of the Assembly of States Parties, New York, 12 December 2011, available online at http://www.icc-cpi.int/iccdocs/asp_docs/ASP10/Statements/ASP10-ST-Pres-Song-Remarks-ENG.pdf (visited 19 March 2014). 41 H. von Hebel, ‘Presentation of the 2014 Proposed Programme Budget’, 12th Session of the Assembly of States Parties, 23 November 2013, available online at http://icc-cpi.int/iccdocs/asp_docs/ASP12/ASP12-Statement-REG-ENG.pdf (visited 19 March 2014). 42 Judge Sang-Hyun Song, President of the International Criminal Court, ‘Statement at the opening of the 12th Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court’, The Hague, 20 November 2013, available online at http://www.icc-cpi.int/iccdocs/asp_docs/ASP12/ASP12-OP-Statement-ICCPRE-ENG.pdf (visited 19 March 2014).

12

attempting to absorb additional activities within its existing resources.43 Such austerity-driven

measures are then presented as evidence that court officials are acting as ‘responsible

managers’ of the states parties’ funds.

The ICC’s assessed contributions framework does produce a more reliable funding structure

than voluntary contributions, as states parties do not need to be approached each year as

possible donors. In practice, and as is the case with many UN organizations as well, ICC

funding tracks the expansions and contractions of the global economy and individual state

economies, revealing the budget’s vulnerability in light of economic pressures. Furthermore,

the ICC’s statute also enables the court to accept voluntary contributions44, which the court’s

own Committee on Budget and Finance has invoked to suggest the use of mixed funding for

central aspects of its operations such as outreach and public information.45 Whilst the material

conditions of the court’s existence are more secure than that of tribunals funded entirely

through voluntary contributions, there are elements of ‘donors’ justice’ at work at the ICC as

well: states must be persuaded to devote part of their foreign affairs and development budgets

to this particular form of juridical intervention.

In some respects, then, the annual ASP meeting operates as a kind of trade exhibition,

allowing the court to showcase its work to those who provide its material support. For

example, visitors to the 2012 ASP were greeted by a large walk-through photography

exhibition entitled “Justice Matters’, replete with images drawn from a variety of court

43 For example, a document addressing the proposed 2014 budget maintains that ‘It has also been possible to absorb, to a large extent, within the 2013 approved level of resources, the additional resources required to support the increased level of judicial activities…’; see ‘Report of the Court on impact of measures to bring the level of the International Criminal Court’s budget for 2014 in line with the level of the 2013 approved budget’, ICC-ASP/12/11, 29 July 2013, available online at http://www.icc-cpi.int/iccdocs/asp_docs/ASP12/ICC-ASP-12-11-ENG.pdf (visited 19 March 2014). 44 Article 116 of the ICC Statute provides that ‘the Court may receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations, and other entities, in accordance with relevant criteria adopted by the ASP.’ A resolution adopted in 2002 requests that ‘Governments, international organizations, individuals, corporations and other entities making voluntary contributions to declare that such contributions are not intended to affect the independence of the Court’; see Resolution ICC-ASP/1/Res.11, ‘Relevant criteria for voluntary contributions to the International Criminal Court’, adopted 3 September 2002. A report on the court’s activities in 2012/2013 to the UN General Assembly noted that the court received voluntary contributions from both states parties and international organizations, including the European Commission and the Hanns Seidel Foundation. See ‘Report of the International Criminal Court’, A/68/314, 13 August 2013, p. 19. 45 Report of the Committee on Budget and Finance on the work of its seventeenth session, ICC-ASP/10/15, 18 November 2011, § 25: ‘There may well be other areas of current Court activity that could benefit from a mixed financing system of assessed and voluntary contributions, such as outreach and public information.’ However, as commentators have noted, ‘funds received through voluntary contributions are not used to arrive at lower assessments of the States Parties, but can and should only be used to fund additional activities – additional to those approved in the budget.’ See Halff and Tolbert, supra note 31, at 1717.

13

activities.46 A section entitled ‘Journey to the Hague’ depicts the travel of witnesses from a

field office in the eastern Congo to their arrival in the clinical modernity of a Hague

courtroom. The following year, the exhibit was accompanied by its own promotional leaflet

announcing ‘Exhibit: Justice Matters. Does it matter to you? Look around you. Would you

like to display this exhibition in your home country?’ A number of DVDs bearing the official

court seal and containing a ‘multimedia exhibit on justice and the International Criminal

Court’ were also made available to ASP delegates. The exhibit hails state party

representatives as an audience of its pitch of a particular conception of ‘global justice’,

showcasing a presumed consensus around the appearance of modern courtrooms, the content

of fair trial rights for defendants, and the importance of outreach activities to affected

communities. Through their circulation and uptake by state representatives, many of whom

also serve as in-country donors to rule of law projects in the very states where the ICC

intervenes, such artifacts also reaffirm the hegemony of the ICC’s vision of justice.47

This need to advertise the court’s products are most pronounced in the work of its

independent Trust Fund for Victims, which relies on voluntary contributions as its main

source of funding.48 Combined with the prospect of victim participation, the work of the Trust

Fund is often mentioned by states parties, court officials, and civil society organizations as

part of the ‘unique mandate of the ICC towards victims’.49 Victims were invoked throughout

the 2013 ASP as beneficiaries of the court’s work, with the Trust Fund ‘play[ing] a crucial

role in fulfilling the promise of the Rome Statute to give a voice also to the victims’.50 Yet its

material resources are arguably the most tenuous given their voluntary nature, as the Fund

relies heavily on annual pledges from interested states. Given its dual mandate of providing

general assistance as well as dispensing court-ordered reparations following convictions, the

financial needs of the Fund fluctuate depending on the timing and outcomes of judicial

processes. This has resulted in external auditors suggesting that the Fund should try to 46 Exhibit ‘Justice Matters,’ sponsored by the city of The Hague and the government of Switzerland, from the 11th Assembly of States Parties Annual Meeting, 14-22 November 2012, The Hague, author’s notes. 47 On how the ICC reproduces specific standards for how justice ought to appear in relation to admissibility challenges, see generally S. Nouwen, Complementarity in the Line of Fire (Cambridge: Cambridge University Press, 2013). See also S. Nouwen and W. Werner in this issue. 48 Only the Fund’s Secretariat forms part of the general ICC budget. For an attempt to theorize the basis of the Trust Fund, see Frédéric Mégret, ‘Justifying Compensation by the International Criminal Court’s Victims Trust Fund: Lessons from Domestic Compensation Schemes’ 36 Brooklyn Journal of International Law (2010) 124-204, at 123. 49 ‘Court’s Revised Strategy in Relation to Victims’, ICC-ASP/11/38, 5 November 2012, available online at http://www.icc-cpi.int/iccdocs/asp_docs/ASP11/ICC-ASP-11-38-ENG.pdf (visited 19 March 2014). 50 ‘Statement on behalf of Germany by Ambassador Pascal Hector’, 20 November 2013, available online at http://www.icc-cpi.int/iccdocs/asp_docs/ASP12/GenDeba/ICC-ASP12-GenDeba-Germany-ENG-FRA.pdf (visited 19 March 2014).

14

‘maximise donations generated from coverage of the first ICC rulings’51 and engage in

marketing strategies through its website, which has a section entitled ‘success stories’ and a

prominent tab inviting visitors to ‘donate now’. Donors can earmark their pledges for specific

activities within the Fund’s mandate, such as assistance that focuses specifically on victims of

sexual and gender-based violence, producing an economy that emphasizes stakeholder

preferences much like the broader neoliberal emphasis on consumer choice.52 Indeed, the

Fund’s official documents had noted that ‘[i]t has become clear that the inability to designate

funds for specific purposes is a point of contention for some State Parties and other

organizations whose regulations or policies prohibit open-ended donations. Without the

ability to stipulate a specific use for the donation, such donors may be reluctant or unable to

pledge funds.’53

Meanwhile, the Trust Fund’s website presents a particular representation of victimhood to its

visitors that relies heavily on images of presumably African women and children. In this

sense, as Kamari Clarke points out, the figure of the victim ‘produces an economy of

appearances’ that generates particular effects; here ‘African victimhood is crucial for

constructing a moral obligation to punish the perpetrator in charge’.54 This marketing of a

particular image of victimhood operates recursively to reaffirm the court’s own focus on the

causes of victimization as embedded in individual criminal subjects, which in turn presents

the court as an appropriate avenue for channeling humanitarian assistance to conflict-affected

communities despite its material and juridical limits.55 The Trust Fund’s own website presses

even farther, claiming that the Fund ‘offers key advantages for promoting lasting peace,

wellbeing and reconciliation in war-torn societies.’56 Accountability and security are bound

up with reconciliation in an effort to present the court and its Trust Fund to states as a

worthwhile foreign policy and development investment.

51 Ibid. 52 For example, Finland earmarked funds for ‘sexual and gender-based violence activities’ under the Fund’s assistance mandate. See generally ‘Trust Fund for Victims financial statements for the period 1 January to 31 December 2012’, ICC-ASP/12/13, 7 August 2013. 53 ‘Trust Fund for Victims, Financial Statements for the Period 1 January to 31 December 2007’, ICC-ASP/7/11, 5 August 2008, p. 8. 54 Clarke, supra note 8, at 11 and 13. 55 The fund’s mandate restricts it to assisting victims of a ‘situation’, which carries temporal and geographical limits. In northern Uganda, for example, this means that only victims of relevant crimes that occurred after the Rome Statute came into effect in 2002 may receive assistance. 56 See http://www.trustfundforvictims.org/two-roles-tfv (visited 19 March 2014).

15

These marketing practices are not unique to international criminal law, but form part of a

broader commodification of values such as accountability and humanitarianism. As Michael

Barnett has observed, ‘[b]ecause good causes do not sell themselves but rather have to be

sold, aid agencies have developed considerable marketing prowess.’57 Aid agencies such as

Oxfam have promoted their work to potential donors since at least the middle of the twentieth

century.58 Against this backdrop the ICC’s Trust Fund seems to be drawing upon common

tropes of humanitarian advertising, much like Oxfam sought funding through its efforts to

burn ‘the image of the starving African child onto the collective British consciousness’.59 This

marketing is primarily addressed to states with the aspiration of securing support for the

ICC’s budget as well as the possibility of voluntary contributions.

The ICC addresses its states parties as shareholders in a particular vision of justice. This

justice is often said to be carried out by the international community in the name of conflict-

affected populations.60 In practice, however, and as other contributors in this issue note, the

ICC works on behalf of a partial community of its member states in order to carry out its ‘core

mandate’ of prosecuting a small number of individuals for a specific set of violations of

international criminal law. Court activities that directly address conflict-affected communities,

such as disseminating information about trials through outreach activities and providing

assistance through the Trust Fund, are more likely to be subjected to the vicissitudes of

voluntary contributions. The political economy of justice at the ICC thus shores up a

retributive vision of justice as criminal accountability – what the court’s registrar described as

‘its ambitious mandate of ending impunity’61 – while invoking a broader ideology of

humanitarian concerns that remain largely unaddressed in practice.

3. Informal (Political) Economies In addition to the more formal political economy of assessed contributions, the work of the

ICC is both supported by and in turn produces additional markets of international criminal

justice. One site where this happens most evidently is with situations referred by the UN

Security Council, which brings in actors outside the official ICC state party constituency.

57 M. Barnett, Empire of Humanity: A History of Humanitarianism (Ithaca: Cornell University Press, 2011), at 42. 58 Ibid., at 41-44. 59 M. Black, A Cause for Our Times: Oxfam, the First 50 Years (Oxford: Oxford University Press, 1992), at 63, as quoted in Barnett, supra note 57, at 43. 60 See generally Kendall and Nouwen, supra note 8. 61 Von Hebel, supra note 41.

16

Here some states that are not parties to the Rome Statute – including members of the P-5 –

nevertheless wield influence over where the court will intervene as well as how its

interventions should be financed.

The court is empowered by its statute to seek funding from the United Nations for UN

Security Council-referred cases subject to approval from the UN General Assembly.62

Commentary on the Rome Statute’s Article 115b provision enabling UN funding asserts that

‘[o]ne way of analysing this is to consider referrals by the Security Council as services

rendered by the Court to the UN. In this light, it is clearly justifiable that expenses incurred

due to those services should be borne by the referring organization.’63 Yet in practice, the two

UNSC resolutions referring the situations to the Court to date, namely those concerning

Darfur and Libya, have specified that the United Nations would not cover the cost of the

referrals. The resolution referring the situation in Darfur states that the UNSC ‘[r]ecognizes

that none of the expenses incurred in connection with the referral, including expenses relating

to investigations or prosecutions in connection with that referral, shall be borne by the United

Nations and that such costs shall be borne by the parties to the Rome Statute and those States

that wish to contribute voluntarily’.64 One commentator claimed that this paragraph ‘was

presumably a condition of U.S. acceptance of the resolution’.65 At the ASP meeting in

December 2011, states parties pointed out the financial implications of the UNSC-referred

situations for Darfur and Libya and resolved to ‘include this matter in its institutional dialogue

with the United Nations’.66 The president of the ICC raised the matter before the Security

Council in 2012, pointing out the disjuncture between the Council’s authority over referrals

whilst leaving states parties to cover their costs:

An area of concern for many ICC States Parties has been the financial implications of these referrals. This complex issue is principally for UN members to consider. Clearly it will be difficult to sustain a system under which a referral is made by the Security Council on behalf of the UN, but the costs of any investigation and trial proceedings are met exclusively by the parties to the Rome Statute.67

62 Art. 115(b) ICCSt. 63 Halff and Tolbert, supra note 31, at 1712. 64 SC Res. 1593 (2005). 65 W. M. Reisman, ‘On Paying the Piper: Financial Responsibility for Security Council Referrals to the International Criminal Court’, 99 American Journal of International Law (2005) 615-618, at 615. 66 See Assembly of States Parties to the Rome Statute of the International Criminal Court Official Records, Volume I, Tenth Session, New York, 12-21 December 2011, Resolution ICC-ASP/10/Res.4 section G, available online at http://www.icc-cpi.int/iccdocs/asp_docs/ASP10/OR/ICC-ASP-10-20-vol.I-ENG.pdf (visited 19 March 2014). 67 Judge Sang-Hyun Song, President of the International Criminal Court, Remarks at United Nations Security Council Open Debate, ‘Peace and Justice, with a Special Focus on the Role of the International Criminal Court’,

17

Despite the court repeatedly raising the issue, UN funding for Security Council referrals has

not been forthcoming. The ICC is thus left to absorb the cost of these situations from its

general budget, leaving some civil society commentators to speculate that referrals may

inadvertently undermine the court’s work.68 Meanwhile, states parties such as Canada have

voluntarily contributed additional funds to assist with the costs of investigations in situations

triggered by Security Council referrals.69

Non-states parties may thus make decisions about where the court intervenes without being

financially accountable for these decisions, creating a space of exception within the political

economy of the ICC. We might then say that the ICC’s political economy is not singular but

multiple: there is the formal economy described above, which is populated by its states parties

who make both assessed and voluntary contributions, as well as an informal economy of other

agents who fall outside this frame. Here, for example, non-members of the ICC system who

are on the UN Security Council may make decisions that carry both political and economic

implications for the ICC. The larger informal economy produced around the court’s work also

includes spaces of indirect financial support, such as when the United States offers rewards

for information that may lead to the execution of ICC arrest warrants or provides military

support for efforts to apprehend suspects.70 Political interests are perhaps even more evident

within this informal economy, as when United States government officials refer to the court as

‘an important forum for advancing US interests’.71

New York, 17 October 2012, available online at http://www.icc-cpi.int/NR/rdonlyres/EED16C4A-2A29-4B17-83C3-94F898335E59/285016/121017ICCPresidentremarkstoUNSCFINAL.pdf (visited 19 March 2014). 68 In a CICC press release, Convenor Bill Pace stated that ‘We are seriously concerned that governments, including members of the UN Security Council, have on one hand increasingly engaged the Court as a major actor in peace and security management, for example in referring a situation like Libya, and on the other hand are ready to make decisions that could undermine the Court’s ability to deliver meaningful justice.’ Coalition for the International Criminal Court, ‘Global Coalition Calls on States to Maintain Financial Commitment to the ICC’, Press Release, 8 July 2011, available online at http://www.iccnow.org/documents/CICC_PR_Budget_FINAL_08072011_%281%29.pdf (visited 19 March 2014). 69 Press Release, Foreign Affairs Canada, ‘Canada Contributes $500,000 to International Criminal Court for Darfur Investigations’, 4 April 2005, available at http://www.iccnow.org/documents/CanadaDarfurFunding4April05.pdf (visited 19 March 2014). 70 S. Rapp, Ambassador-at-Large for War Crimes Issues, ‘Statement of the U.S. at the Twelfth Session of the Assembly of States Parties of the International Criminal Court’, The Hague, 21 November 2013, available online at http://www.state.gov/j/gcj/us_releases/remarks/2013/218069.htm (visited 19 March 2014). Ambassador Rapp noted that ‘in January 2013, President Obama signed legislation expanding the War Crimes Rewards Program, enabling the United States to offer rewards of up to $5 million for information leading to the arrest of ICC fugitives.’ 71 H. H. Koh, ‘International Criminal Justice 5.0’, New York City, 8 November 2012, available online at http://www.state.gov/s/l/releases/remarks/200957.htm (visited 19 March 2014). Koh further noted that ‘the

18

In addition to including spaces for states not party to the Rome Statute to finance and exert

influence in court activities, the ICC’s informal economy includes actors who carry out the

court’s work without receiving financial compensation. To be sure, an intervention by the ICC

produces economic aspirations among some domestic actors, whether lawyers who attempt to

represent potential victim participants without formal recognition from the court or

community based organizations that recast their objectives in line with the ICC’s mandate,

contributing to what Kamari Clarke has called the ‘rule of law economy’.72 As one ICC

employee described this phenomenon, when the ICC intervenes, ‘a market opens’.73

Yet court interventions also rely heavily upon the uncompensated labor of individuals and

organizations in situation countries. Many of these actors are referred to as ‘intermediaries’ in

the ICC’s own discourse, though the term does not appear in the court’s Statute or Rules of

Procedure and Evidence. A set of ICC guidelines governing intermediary-court relations

defines an intermediary as ‘someone who comes between one person and another; who

facilitates contact or provides a link between one of the organs or units of the Court or

Counsel on the one hand, and victims, witnesses, beneficiaries of reparations and/or affected

communities more broadly on the other.’74 The role of intermediaries in the court’s work is

wide-ranging and diverse, with some working for the Office of the Prosecutor as informants

or carrying out investigative duties,75 whilst others assist court staff with identifying

individuals and communities who have been affected by alleged crimes. Their work is

widespread within the court’s informal economy; it is also uncompensated and at times

perilous, with individuals and organizations taking on risks without the provision of security

by the court.76 The ICC’s reliance upon individuals who essentially volunteer their labor for

United States has long recognized that international criminal justice, and accountability for those responsible for atrocities, is in our national security interests as well as in our humanitarian interests.’ 72 Clarke, supra note 4, at 81. 73 Author’s interview with ICC staff member, Kinshasa, 22 June 2011. 74 International Criminal Court, ‘Guidelines Governing the Relation Between the Court and Intermediaries’, March 2014, at 5. Available online at http://www.icc-cpi.int/en_menus/icc/legal%20texts%20and%20tools/strategies-and-guidelines/Documents/GRCI-Eng.pdf (visited 10 July 2014). 75 The Office of the Prosecutor has been criticized for its use of intermediaries in the Democratic Republic of Congo in the Lubanga judgment, where Trial Chamber I claimed that the prosecution should not have delegated its investigative duties to intermediaries. For an account of this decision, see C. De Vos, ‘“Someone Who Comes Between One Person and Another”: Lubanga, Local Cooperation, and the Right to a Fair Trial’, Case Note, 12 Melbourne Journal of International Law (2011), 217-236. 76 See generally ‘Second Report on the Court on the financial implications of the draft Guidelines governing the relations between the Court and Intermediaries’, ICC-ASP/12/53, 30 October 2013. For example, the Public Information and Documentation Section (PIDS) responsible for outreach ‘explains to intermediaries that the Court cannot be held liable for anything that might occur while they are providing their assistance to the Court.’

19

the project of international criminal justice raises a number of ethical issues.77 From the

neoliberal frame in which the court figures itself, however, this is merely a matter of

‘outsourcing’ its work in order to conserve financial resources. The following section

considers some implications of this managerial thinking, and in particular, of elevating

‘responsible manage[ment] of the funds which the States Parties have provided’78 as a

measure of institutional value. What other values are sidelined or threatened with this

widespread turn to economic rationality, and its attendant emphasis on efficiency and cost

effectiveness?

4. The Austerities of ‘Global Justice’ Managerial discourse pervades the official communicative practices of the ICC. In her

opening statement to the ASP in 2012, for example, prosecutor Fatou Bensouda claimed that

her office carried out its work ‘with a view to finding efficiencies and further improving our

work products’.79 At the same annual meeting, Japan, the largest contributor to the court’s

budget had warned that the ICC must find ways of addressing its ‘long-term “cost drivers”’.80

Such language is unsurprising in the context of a shareholder relationship with a corporation.

However, the fact that the ‘work products’ referred to here include indictments, investigations

and cases, and that legal aid (including defense and victim representation) has been identified

among the ‘long-term cost drivers’ suggests that the general ethos of austerity around the

court’s work deserves further scrutiny. What are the effects of submitting international

criminal justice – with its normative stake in careful attention to detail, deliberation and

procedure – to a managerial discourse and its attendant emphasis on efficiency?

At the ICC’s 2013 ASP, the court’s registrar claimed that areas of the Registry’s budget

‘remained closer or equal to zero-growth, despite the increased workload and level of

For a critical perspective on the ICC’s use of intermediaries, see D. Clancy, ‘“They told us we would be part of history”: Reflections on the Civil Society Intermediary Experience in the Great Lakes Region’ in C. De Vos, S. Kendall and C. Stahn (eds), Contested Justice: the Politics and Practice of International Criminal Court Interventions (Cambridge: Cambridge University Press, forthcoming 2015). 77 See S. Kendall, ‘Critical Orientations: A Critique of International Criminal Court Practice’ in C. Schwöbel (ed), Critical Approaches to International Criminal Law (London, Routledge, 2014). 78 Song, supra note 42. 79 Fatou Bensouda, Statement to the 11th Assembly of States Parties, 14 November 2012, available online at http://www.icc-cpi.int/NR/rdonlyres/3A2E6029-40FB-4BA8-B2D5-D1489953050C/0/ASP11OpeningOTPBensoudaENGFRA.pdf (visited 19 March 2014). 80 ‘Japan, Statement by H.E. Mr. Yasumasa Nagamine’, 11th Assembly of States Parties, 15 November 2012, available online at http://www.icc-cpi.int/iccdocs/asp_docs/ASP11/GenDeba/ICC-ASP11-GenDeba-JPN-ENG.pdf (visited 19 March 2014).

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activities.’81 Despite being absorbed into the court’s general discourse of efficiency, the

notion of ‘zero growth’ returns at key moments to punctuate the court’s ethos of austerity.

Containing the court’s activities within existing resources appears as an important value for

those governing the court’s budget, yet at the 2012 ASP Prosecutor Bensouda had warned that

‘the cuts have reached the bones’.82 In 2011, when the ICC received the two additional

situations of Côte d’Ivoire and Libya, Bensouda’s predecessor suggested that the failure to

secure additional funding would hamper his ability to conduct investigations, adding that it

might possibly result in imbalanced charging for both situations:

‘I will focus on Gbagbo but I cannot do the rebel forces,’ Moreno-Ocampo said. ‘I don't know whether Libya will challenge the jurisdiction so I am continuing the investigation. Without this money I don't know whether I can continue the current investigation of rapes and I don't know if I can investigate the rebel sides.’83

This statement may have been directed to an audience of states parties to encourage them to

prioritize funding the court, but it suggests serious implications for how investigative

decisions are made.84 Adding new situations also requires redeploying staff to new field

offices and thinning out staff working on existing situations, particularly where there is little

current judicial activity. In response, the court has developed what it terms ‘maintenance

strategies’ for situations like Uganda, with a diminished field presence and minimal staff.85

One staff member explained that the ‘maintenance strategy’ might be better characterized as

an exit strategy, noting that donor interest in Uganda had been waning and Kenya had become

the main focus.86 Furthermore, in response to budgetary pressures, the Court’s Registry

undertook a review of its legal aid policy, which includes victim representation, despite

substantial resistance from affected parties and civil society organizations.87

81 Von Hebel, supra note 41. 82 Bensouda, supra note 79, quoting the Chairperson of the Committee of Budget and Finance. 83 Supra note 12. 84 For a general analysis of some of the problems facing ICC investigations, see C. De Vos, ‘Investigating from Afar: the ICC’s Evidence Problem’, 26 Leiden Journal of International Law (2013) 1009-1024. 85 ‘Report of the Court on complementarity: Completion of ICC activities in a situation country’, ICC-ASP/12/32, 15 October 2013. 86 Author’s interview with ICC staff member, Kampala, 12 December 2011. 87 The CICC noted that the review, ‘which has as its aim to reduce costs, has given rise to a proposal to cut legal aid, with great detrimental effect to all parties – above all defendants and victims – without adequate consultation and considered reflection with stakeholders over a practical length of time.’ Legal Representation Team of the Coalition for the International Criminal Court, ‘Comments and Recommendations on the “Discussion paper on the Review of the ICC Legal Aid System”’, 31 January 2012, available online at http://www.coalitionfortheicc.org/documents/Legal_Aid_review_comments.pdf (visited 19 March 2014).

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During the early stages of the Kenyan proceedings, the court acknowledged that

‘unrealistically high expectations already exist about what the ICC can achieve’.88 Some court

staff members have incorporated the phrase ‘managing expectations’ into descriptions of their

work.89 The impression that expectations of conflict-affected populations need to be

‘managed’ can be read as a sobering recognition of the court’s limits after all of the

overdetermined claims about bringing justice and giving a voice to victims. It might also mark

a kind of resignation among staff that the ICC provides a limited framework for participatory

and restorative forms of justice beyond the court’s judicial mandate.

The discourse of ‘maintenance strategies’ and ‘managing expectations’ reveals a deeper issue

when thinking of conflict-affected communities as beneficiaries of the court’s work. It shows

how the court is primarily focused on the bottom line – on managing its limited budget as a

kind of existential priority. One civil society organization expressed concerns that ‘the drive

to introduce further cost-saving measures might indicate a general finance-driven approach to

the review of, or introduction of, new policies or procedures.’90 This bears out in how some

members of the court’s field staff describe the institution’s work. One staff member explained

that ‘there is a big focus on economics’ which placed greater emphasis on ‘making financially

informed decisions’ than on meeting victim-related objectives.91 Meanwhile, the court’s

Victim Participation and Reparations Section (VPRS) is plagued by resource constraints, and

much staff time is consumed by dealing with a large backlog of victim applications. This can

result in significant problems for the administration of justice, as when hundreds of

individuals were unable to have their participation forms adjudicated in time for the

confirmation of charges hearings in the Mbarushimana case in 2011.92

Resource allocation within the court is primarily channeled Hague-ward, to the seat of judicial

activity and toward salaries that are pegged to the UN common system. Where ‘efficiencies’

are often ‘found’, to borrow Bensouda’s language, are in field offices in situation countries, at 88 Public Redacted Version of Report Concerning Victims’ Representations (ICC-01-09-06-Conf-Exp) and annexes 2 to 10, Situation in the Republic of Kenya (ICC-01-09), Pre-Trial Chamber II, 29 March 2010, §18. 89 Author’s interview with member of ICC Public Information and Documentation Section (PIDS), 16 January 2012; author’s interview with member of Victim Participation and Reparations Section (VPRS), 27 January 2012. 90 Victims’ Rights Working Group, ‘The Implementation of Victims’ Rights Before the ICC: Issues Presented by the Victims Rights Working Group on the Occasion of the 10th Session of the Assembly of States Parties’, 2011, available online at http://www.vrwg.org/VRWG_DOC/2011_VRWG_ASP10.pdf (visited 19 March 2014), at 4. 91 Author’s interview with field assistants to common legal representative for victims, Nairobi, 17 January 2012. 92 REDRESS, ‘Hundreds of Victims Prevented from Participating in Crucial Court Hearings Due to Lack of Resources at the International Criminal Court’, Press Release, 15 July 2011, available online at http://www.redress.org/downloads/StatementVictimParticipation15July2011.pdf (visited 19 March 2014).

22

the peripheries of the court’s judicial activity and more vulnerable to its itinerant geography.

Through its financial practices the court produces distinctions between ‘core judicial

functions’ and less central dimensions of its work, such as victim participation and outreach,

where staff are expected to stretch their limited resources in often challenging conditions.93

Under the sway of austerity, it appears that other areas of court activity in addition to the

Trust Fund have been funded through voluntary contributions. The Registry set up a special

fund for relocating ICC witnesses to states that are willing to host them but are unable to

provide financial support. Commenting on his state’s contribution to this fund, the British

ambassador to the Netherlands announced that

the UK has called on the Court to take tough decisions in response to the continuing global economic crisis. But we recognize that states also have a responsibility to ensure that the Court has sufficient resources to carry out its task. That is why the UK made a donation of over 200,000 pounds to support witness relocation in the Kenyan investigation.94

Presumably these ‘tough decisions’ pressed by the UK involved cuts to the overall budget, but

certain court functions were seen to be of such critical importance that they merited voluntary

contributions to side funds. Perhaps in response to the perceived conflicts of earmarking

donations for specific activities in specific situations, the ICC press release on the British

donation noted that ‘[a]lthough earmarking remains the exception, as the Court has the

vocation to protect all victims and witnesses in all situations over which it has jurisdiction,

this donation constitutes an important gesture towards the victims and witnesses of post-

election violence in Kenya, and towards international justice and the common fight against

impunity.’95 While witness protection in the Kenyan situation has proven to be particularly

challenging, this practice suggests an ad hoc approach to the court’s work that reveals

dimensions of ‘donors’ justice’. The ICC’s special fund for witness relocation might indicate

a shift in this direction, where relatively wealthy states may select specific areas of the ICC’s

93 The outreach coordinator in Kenya explained that she was allocated 20,000 euro for outreach in 2012, yet in a two-month period at the end of 2011 she had already used 18,000 euro; meanwhile she had to draw upon outreach funds designated for the Ugandan situation. Author’s interview with ICC staff member, Nairobi, 16 January 2012. 94 ‘UK Donates Over 550,000 Euros to Trust Fund for Victims,’ Press Release, 22 March 2011, available online at http://www.hirondellenews.com/icc/320-collaboration-with-states/24950-en-en-210311-iccunited-kingdom-uk-donates-over-550000-euros-to-trust-fund-for-victims1400114001 (visited 14 March 2014). 95 International Criminal Court, ‘The ICC Welcomes UK contribution for relocating at-risk persons in Kenya,’ Press Release ICC-CPI-20101126-PR601, 26 November 2010, available online at http://www.icc-cpi.int/en_menus/icc/press%20and%20media/press%20releases/press%20releases%20%282010%29/Pages/icc%20welcomes%20uk%20contribution%20for%20relocating%20at_risk%20persons%20in%20kenya.aspx (visited 14 March 2014).

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work to support in a piecemeal fashion while simultaneously pushing for a lower overall

budget, as the UK did during that round of budget negotiations. ICC witnesses continue to

face risks that require considerable assistance,96 but addressing such fundamental

responsibilities of the court through voluntary side funds may inadvertently create further

avenues for state influence.

5. Conclusion

In reading the work of the court through the related optics of political interest and material

conditions of possibility, claims regarding ‘global justice’ through international criminal law

appear in a different light. What emerges through this interpretive prism is a juridical field

that is preoccupied by concerns with the oikos – investments and efficiencies – while

sidelining matters of the polis, such as deliberation and accountability. While the court and its

proponents speak in the name of a universalist ‘international community’, its shareholder

constituency is partial and particular, with its own political commitments and seeking a

‘return’ on its juridical investments.

To Hannah Arendt, the danger of devaluing the public realm becomes evident when

universalist value systems – such as a fixed conception of international criminal law as

‘global justice’– are too easily applied. As Jan Klabbers characterizes it, for Arendt the risk

lies ‘where the application of the posited core values ends up in the hands of bureaucrats,

applying norms coming out of nowhere, based not on agreement between political actors but

on someone’s conception of what the world needs, and without any system of

accountability.’97 Building upon this insight, this article has argued that international criminal

law, which is often cast as an apolitical and cosmopolitan form of ‘global justice’, is haunted

by the prospect of privileging the private realm, characterized here by managerial discourse

and its focus on the ‘bottom line’. This is made clear when key public moments of the ICC’s

self-expression, such as annual ASP meetings, are occupied with concerns about efficiency

and returns on investments. Such expressions may be read as an uptake of neoliberal

96 According to a member of the OTP, ‘witness security is the biggest challenge by far facing the court. It is one thing that could defeat the court.’ He noted that the office did not have adequate resources to deal with the problem. ‘The Law and Practice of the International Criminal Court: Achievements, Impact and Challenges’ conference, The Hague, Prosecutors’ roundtable, 27 September 2012, author’s notes. 97 Jan Klabbers, ‘Possible Islands of Predictability: the Legal Thought of Hannah Arendt’ 20 Leiden Journal of International Law (2007), 1-23, at 21.

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reasoning, extending the logic of the market to claims about ‘global justice’, yet they arguably

reveal even more about the politics of membership in the ICC’s political economy.

According to an official report by the Bureau of the Assembly of States Parties, the ASP’s

executive body and perhaps the ICC’s most evident constituency,

there is a need to close the gap between expectations, rights and resources. In other words, whilst stakeholders should bear in mind that victims’ rights are a cornerstone of the Statute and, therefore, the debate on victims cannot be reduced to a cost-driver, they should be aware that the world is still facing a financial crisis that has consequences in terms of the allocation of resources. As a result, finding that balance is a matter of priority.98

Addressed to ICC ‘stakeholders’, of which the Bureau forms a central part, this report takes

up matters related to victims and affected communities – stakeholders of a different kind, in

the sense that the project of ‘global justice’ is ostensibly carried out in their name. Insofar as

stakeholders are understood to be interest-bearing subjects, different sets of interests become

apparent in the Bureau’s framing of ‘the gap between expectations, rights and resources’. For

victims and affected communities, who may hold expectations about how their rights should

be asserted through the field of international criminal law, such interests entail accountability,

representation, and rights claims – matters of the public realm that may produce contestation

and resistance. By contrast, the appeal to balancing resource constraints against such interests

appears to flatten out the political through retreating into the discourse of austerity.

This appeal to balance as a priority reveals the paradox or dilemma at the heart of the ICC’s

claim to ‘global justice’. In order to secure sufficient political will to continue to appeal to its

states parties (and by extension, to receive strong budgetary support), the ICC has to cast itself

as more ambitious than it can be: hence its overdetermined claims to ‘ending impunity’,

‘restoring the dignity of victims’ and ‘bringing a sustainable peace’. At the same time, its

essentially retributive framework and focus on prosecuting a small number of individuals

limits the ICC, which must market itself to states parties while drawing upon labor from an

informal economy of ‘intermediaries’ and volunteers.

As the discourse of ‘managing expectations’ suggests, conflict-affected communities who

seek redress from the ICC are likely to be disappointed by an inward-looking structure that

98 ‘Report of the Bureau on victims and affected communities and the Trust Fund for Victims, including reparations and intermediaries’, ICC-ASP/12/38, 15 October 2013.

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underfunds its field presence and relies heavily on third parties to voluntarily carry out much

of its work. As an ICC employee explained, ‘the court is a limited system: its focus is on the

judicial, not the victims.’99 Rather than conflict-affected communities, the key audience of the

court’s work seems to be the states parties that fund it – the shareholder constituency of

international criminal justice that provides its material conditions of possibility. In this light,

interest in what Ocampo describes as ‘global justice and the prevention of crime through

justice’ or what President Song terms the ‘fight against impunity’ appear more

comprehensible as foreign policy strategies concerned with security and development

objectives than as forms of redress for conflict-affected communities – a political economy of

global governance rather than of global justice.

99 Author’s interview with ICC staff member, Kampala, 19 November 2011.

Commodifying Global Justice: Economies of Accountability at the International Criminal Court

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