If there is still merit in the saying “he who pays the piper calls the tune”, then one only needs to look at the funders of the ICC budget to know who is really in control at The Hague.
The ICC’s 2010 Budget was set at a total of €102.98M, of which €99.83m (97 per cent was for the Court itself; and €3.15m (3 per cent) was for the Secretariat of the Assembly of States Parties. Any examination of the ICC’s budget clearly shows that the Court is umbilically tied financially to the European Union, which provides over 60% of its funding.
Prof Mahmood Mamdani has said the ICC is dancing to the “tune” of Western states. Given Africa’s traumatic experience with the very same colonial powers that now in effect direct the ICC, it is an unfortunate case of déjà vu.
The funding of the ICC is a critical issue in assessing the credibility and viability of the organisation. There are deep concerns not just about the ICC’s acute financial dependence upon Western European funding corrupting the Court’s legal independence, but also on the all too obvious inefficiencies in how that money is used. The American commentator, John Rosenthal, has gone to the heart of the matter by stating: “It is a self-evident principle that the independence and hence impartiality of a court is only as sure as the independence of its financing.”
The ICC itself says it is financed by contributions from its states parties. The amount payable by each state party is determined using the same method as the United Nations: each state’s contribution is based on the country’s capacity to pay, which reflects factors such as national income and population.
The maximum amount a single country can pay in any year is limited to 22% of the Court’s budget. The ICC spent €80.5m in 2007. The Assembly of States Parties approved a budget of €90.38m for 2008 and €101.23m for 2009. By April 2009, the ICC employed 743 people.
There are two points of immediate concern regarding the ICC budget. The first that while the Court theoretically sets a cap on funding at 22% of its budget from any one country, considerably more than 50% of its 2009 budget funding came from EU member countries. Thus, the contributions to the ICC’s 2009 budget clearly illustrated the continuing European hold on the Court’s funding.
The EU, through its member states, paid 60% of the 2009 budget of €94.17m. If one includes – as the EU does in its statements regarding the ICC – those other European states which it says are candidate or potential candidate members of the EU and those other European nations that associate themselves with the EU position, the European contribution comes to a cool 63%. The EU, therefore, clearly, and probably unconstitutionally, financially dominates the ICC.
The biggest contributors to the ICC in 2009 were Germany €12.95m (almost 14%); UK €10.03m (10%); Italy €7.67m (8%); France €7.55m (8%); Spain €4.48m (4%). The five dominant EU countries paid 44% of the ICC budget.
There is, as always is the case, a direct relationship between levels of payment and control. Secondly, in the section of the ICC’s own website entitled “How is the Court funded”, the ICC interestingly reveals that it also receives money from “international corporations, individuals, and other entities”. Article 116 of the Rome Statute provides for these voluntary contributions. But no details are provided for this funding line and mysterious donors.
The thought of private interests such as major multinational businesses helping to finance a judicial organisation is one that should be of great alarm to all those who believe in the rule of law. Rosenthal notes: “None of us would put faith in the impartiality of a local or national court if it depended upon the largesse of private individuals or corporations, who, by definition, might have an interest in the outcome of particular proceedings.”