The provisions on the financing of the Court should be governed by the following principles. Firstly, the ICC must be an independent judicial body and, so far as possible, be free from external interference in the exercise of its functions. Secondly, ICC must be adequately financed, and equipped with professional staff of the highest caliber. Thirdly, funding should come from a solid and predictable source. Finally, the Court must be capable of establishment without delay.
Article 104: Funds of the Court
· Recommendation: Provide for the secure and sufficient financing of the Court, free from susceptibility to political manipulation and control. While not a perfect option, financing from the budget of the United Nations is the best way to meet these objectives.
Comment: Adequate funding and qualified, professional staff is essential if the Court is to efficiently discharge its critical mandate.74 The current text of Article 104 contains three options: firstly, that the Court be funded from contributions by states parties, secondly, that it be funded out of the regular budget of the U.N., or thirdly, that it be funded by combination of the two previous options, with an initial phase during which the expenses shall be borne by the U.N.
Funding from U.N. assessments is entirely appropriate given the universal nature and mandate of the Court to prosecute crimes of concern to the international community as a whole. Strong financial and other links with the U.N., if coupledwith the necessary safeguards for its independence, would enhance the international standing of the Court.
Whether the ICC emerges as a treaty body or a an independent international organization75, it critical is that the funding of the Court come from the regular U.N. budget of the United Nations. Treaty bodies can be and generally are funded from the U.N. budget, that they are supported by a secretariat provided by the U.N.76 The establishment of the Court as an independent international organization does not preclude U.N. financing and must not be used to justify burdening state parties with the costs of this international institution.
The proposal that state parties meet the costs of the Court is problematic on several grounds.77 Firstly, making states parties bear the heavy financial burden of the Court's expenses would be a disincentive to ratification. states must be encouraged to ratify, not penalized for doing so. states with more limited financial resources must not be in any way impeded from becoming parties to the treaty or from bringing complaints to the Court, on the basis of their lesser ability to pay.
Secondly, attempts to finance bodies entirely from contributions by states parties have proven unworkable in the past.78 While financing by the U.N. will not entirely remove the issue from the political arena, it is preferable to funding by states parties. Funding by states parties would subject the Court to control by a smaller number of individual states, which could paralyze its operation through the nonpayment of dues.
Finally, the proposal that states should pay for the complaints they choose to lodge also raises serious concerns. States should not be required to pay for lodging good faith complaints.79 The rationale underlying this proposal is entirelymisconceived. Given that such complaints should not be made in the interest of the state itself, but in the interests of international justice, states should be encouraged to make complaints, not financially penalized for doing so. Providing for U.N. financing would ensure that international justice is accessible to all states and their citizens, regardless of their financial means.
74 Undoubtedly, the costs involved in the establishment and operation of this Court will be substantial. For a study of the financial implications, see, generally, Tom Warrick, "Organization of the International Criminal Court: Administrative and Financial Issues" in The International Criminal Court: Observations and Issues before the 1997-98 Preparatory Committee and Administrative and Financial Implications (Association Internationale de Droit Penal, 1997).
75 See Article 2 of the draft statute
76 For example, the Committee against Torture, created by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 17; GA Res. 39/46, UN GAOR, 39th session, Supp. No. 51, p.197.
77 These concerns are relevant to Options 1 and 3.
78 This was the experience of certain bodies, such as the Committee on the Elimination of Racial Discrimination and Committee against Torture. While they began their existence funded by states parties, crises brought about by nonpayment lead them to transfer to the regular budget of the U.N.
79 Other proposals that have been made include, for example, the U.S. proposal to the ad hoc committee in 1995, which supported funding from state parties, states responsible for bringing complaints (or the Security Council when it lodges a complaint), and voluntary contributions.
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