On March 14th, the International Criminal Court (ICC) delivered it first judgment, finding Thomas Lubanga guilty of three child soldier war crimes offenses. The verdict is a welcome victory in the fight against impunity and it is some measure of justice for the 60,000 persons killed in the Ituri province in Eastern Congo. But the judgment highlighted the ICC’s painstakingly slow pace to date – the ICC has been in existence for ten years and so far they have indicted 15 persons and achieved one conviction. And it should be noted this is not a final conviction, but only a trial verdict. To be fair, three other accused are in the midst of trials.
Just how much have these 15 indictments and lone conviction cost the ICCs signatories? The cumulative total of the ICC’s budgets over the initial decade is $900 million. By way of comparison, the International Criminal Tribunal for the Former Yugoslavia (ICTY) spent $695 million in its first ten years, and the International Criminal Tribunal for Rwanda (ICTR) spent about a $1 billion. So at a glance the ICC is not out of line with its brethren institutions.
However, the ICTY and ICTR both indicted far more suspects for that money. The ICTY indicted 161 persons, [1. The ICTY has concluded proceedings in 126 cases which includes 64 convictions. 17 cases are on appeal.] while the ICTR indicted 91 persons.[2. he ICTR has concluded proceedings in 78 which includes 42 convictions. 18 cases are on appeal.] I didn’t have time to research every indictment, but my memory was that most of those indictments had been issued by the ten year mark.
Let’s break those numbers down a bit more. Based on the numbers above, the cost per suspect indicted at the ICTY, regardless of the outcome of the case, was $4.3 million, it was $11 million at the ICTR and $60 million at the ICC.
I am not going to address the overall cost of international tribunals in this blog. Suffice it to say that they are too expensive and too inefficient in my view. What I would like to talk about here is the ICC relative costs to the ICTY and ICTR ad hoc tribunals.
While we can expect that the ICC will approach the cost structures of the ad hocsover time, the ICC will never be able to match their operational costs (particularly the lower ICTY costs) for several reasons.
First, the ICTY and ICTR were both mandated by Security Council resolutions, and thus the major political and legal questions about their right to adjudicate matters was resolved before their work began. At their inception, they had the luxury of focusing their energies on criminal investigations rather than jurisdictional challenges. The ICC is a wholly different animal. It must establish its right to exercise its jurisdiction in each situation it chooses to “officially” investigate, and must walk a diplomatic tightrope along the way. (The only exception to that rule is when the Security Council refers cases to it, as it did with Sudan and Libya.)
Second, the ICTY and ICTR both had clear and specific mandates — to prosecute those most responsible for offenses in defined conflicts. The ICC, on the other hand, has a global mandate with an obligation to consider crimes committed in any of its 139 signatory territories plus any others referred to it by the Security Council. The ICC gets thousands of unofficial communiques each year. It must conduct a cursory review of these communiques regardless of whether it decides to launch an official investigation.
Third, the ICTY and ICTR had one-time ramp-up costs and learning curves. The ICC goes through this ramp-up process for each official investigation. The ICC must establish information and logistical beachheads in each situation, creating an investigational infrastructure for each official investigation. Key witnesses have to be located, relationships formed and nurtured and local politics mastered. Even small details such as safe hotels for accommodation have to be sorted out.
Fourth, the ICC’s broad mandate brings with it an immense problem of language. The two ad hoc tribunals had to contend with difficult regional languages – Kinyarwandan in Rwanda and several Balkan languages in Yugoslavia. The ICC is obligated to function in all of the languages relevant to the conflicts it investigates: there are 200 languages are spoken in the Congo, 72 in the Central Africa Republic, 45 in Uganda, 142 for Sudan, 79 in The Ivory Coast and 69 in Kenya. The ICC could breathe easy with Libya where only 9 languages are spoken. Of course, many people in the Congo speak a lingua franca, Swahili or Lingala. But many witnesses have stronger language capabilities in their local tongues.
We have given the ICC a complicated mandate to achieve and it is no surprise that it is taking it a while to hit its stride.