<<

. 25
( 54 .)



>>

a
ICC-ASP/2/10, ˜˜Draft Resolution of the Assembly of States Parties on the 2004 Draft
Programme Budget . . . in 2004,™™ Annex I, 155.
b
ICC-ASP/3/2, Draft Programme Budget for 2005, ASP Third Session, Of¬cial Records, 3.
c
ICC-ASP/4/5, Proposed Programme Budget for 2006, ASP Fourth Session, Of¬cial Records, 3.
d
ICC-ASP/5/9, ˜˜Proposed Programme Budget for 2007, ASP Fifth Session, Of¬cial Records, 3.
e
ICC-ASP/1/3, ˜˜Budget Appropriations for the First Financial Period . . . ™™ Resolution ICC-
ASP/1/Res.12, in ASP, First Session, Of¬cial Records, 349.
f
Resolution ICC-ASP/2/Res.1, ˜˜Programme Budget for 2004,™™ ICC-ASP/2/10, Second Session,
Of¬cial Records, 202.
g
Resolution ICC-ASP/3/Res.4, ˜˜Programme Budget for 2005,™™ ICC-ASP/3/25, 323.
h
Resolution ICC-ASP/4/Res.8, ˜˜Programme Budget for 2006,™™ ASP Fourth Session Of¬cial
Records, 350.
i
Resolution ICC-ASP/5/Res.4, ˜˜Programme Budget for 2007,™™ ASP Fifth Session Of¬cial
Records, 383.
j
ICC-ASP/4/9 Statement I ˜˜International Criminal Court Statement of Income and Expenditure
. . . for the Period Ending 31 December 2004,™™ 7 September 2005, 32.
k
ICC-ASP/4/5, 139. ˜˜Proposed Programme Budget for 2006™™ Annex V, Summary Table by
Object of Expenditure. Statement I.
l
ICC-ASP/5/9/corr.1, 3. ˜˜Proposed Programme Budget for 2007,™™ Table Annex VI, 8 September
2006.
m
ICC-ASP/6/3, ˜˜Report on Programme Performance of the International Criminal Court for the
Year 2006™™ (2007), 9.


Aware of the sensitivity of the states to the rapid growth of the court™s
budget, ICC of¬cials were also concerned that the budgetary process needed
to be based on some realistic idea of how much the Court could do at any


74
ICC, Assembly of States Parties, op cit.
138 Building the International Criminal Court

level of resources. They sought to develop a method to predict costs and to
determine where in their organizational processes dif¬culties were likely to
arise under different planning assumptions. These ideas were developed
concurrently with the Strategic Plan75 and called the ˜˜Court Capacity
Model.™™ The plan and model were completed during the summer of 2006,
and sent to the ASP at its ¬fth session in November.

Strategic Plan
The strategic planning process was hindered partly by the crush of other
business and partly by the range of responsibilities and objectives pursued
by different parts of the Court. The ¬nal overall plan embraced a broad
range of goals providing little new focus; the OTP plan rearticulated the
principles that had come to guide the of¬ce over the preceding three years;
and the outreach proposal incorporated many of the objectives of NGOs
and ˜˜new justice™™ advocates within the Court, but was accorded a lower
apparent priority than core OTP activities.
Representatives to the ASP are diplomatic representatives of their states;
because of the normal rotation of diplomatic staff, the ASP audience to
whom the Strategic Plan was addressed included few people who were
involved in negotiating the Statute “ thus, it sought to inform them about
the Court, its context, and its overall mission as well as its immediate and
longer-term objectives.
The Strategic Plan was extensively negotiated among the Court™s organs.
A somewhat anodyne document, it is a useful basis on which the Court can
inform new ASP representatives and others about the Court™s aims and
priorities. The Strategic Plan™s mission was stated in traditional, rather than
new justice, terms, to ˜˜Fairly, effectively and impartially investigate, pros-
ecute and conduct trials of the most serious crimes; Act transparently and
ef¬ciently; and Contribute to long-lasting respect for and the enforcement
of international criminal justice, to the prevention of crime and to the ¬ght
against impunity.™™76 Within the mission, the plan states three strategic
goals,77 each one having priority objectives for the coming three years,
and additional ten-year objectives. The ¬rst goal is to ˜˜conduct fair,
effective and expeditious public proceedings in accordance with the Rome
Statute and with high legal standards, ensuring full exercise of the rights of


75
ICC, Assembly of States Parties, Fifth Session, ˜˜Strategic Plan of the International Criminal
Court™™ ICC-ASP/5/6 (2006).
76
Ibid., p. 4.
77
Ibid., p. 5.
139
Building the Court

all participants.™™78 The second is for the Court to gain support by
enhancing awareness, a correct understanding, and increased support for
the Court.79 The third goal is for the Court to be ˜˜a model of public
administration,™™ ef¬cient, ¬‚exible, and accountable, with a quali¬ed and
motivated staff working in a caring environment and a ˜˜non-bureaucratic
culture.™™80
The real priority-setting activity remained in the budgetary process, and
the Court Capacity Model was a more instructive device for this.

Court Capacity Model
Even before the strategic planning got seriously under way, Court of¬cials
were talking about developing a ˜˜Court Capacity Model.™™81 The idea was
that the Court™s activities could be thought of as a production operation,
built up from distinct phases of activity, each of which could be pursued at
larger or smaller scale, needed to dovetail with prior and successor opera-
tions, and which, if implemented at the wrong scale, could create excess
capacity, and thus waste, or become a bottleneck in the operation.
Devising the model in advance of experience with a full cycle “ from
investigation through trial outcome “ had to be a largely hypothetical
exercise, but information was being produced even as the Court began its
operations, and precedents could be found in the ad hoc tribunals™

78
Priority objectives for goal 1 included conducting four to six new investigations of existing
or new situations over the next three years; putting in place a system to address all security
risks; developing policies to protect all participants in proceedings and persons otherwise
affected by the Court™s activities; completing the Court Capacity Model and initiating
discussions with the Assembly of States Parties on the number of cases the court will be able
to pursue each year; and developing options for ¬eld of¬ces as well as the permanent
premises. Ibid., pp. 6“8.
79
Priority objectives for goal 2 included cultivating awareness and understanding of the Court
in affected communities; developing cooperation mechanisms, in particular for suspects™
arrest and surrender; increasing support for the Court by improved communication and
mutual understanding with stakeholders; and developing and implementing ways to
publicize all proceedings for local and global audiences. Ibid., pp. 8“9.
80
Priority objectives included establishing and clarifying roles of and decision-making
processes within and between the Court™s organs; becoming a nonbureaucratic
administration focused on results rather than processes; deploying programs to achieve
˜˜identi¬ed optimal levels of quality with maximum ef¬ciency™™; submitting sound, accurate
and transparent budget proposals; recruiting a diverse staff of the highest standards;
providing maximum possible security, safety, and welfare for all staff; developing a
supportive and ethical staff culture; and becoming an ˜˜e-institution™™ that provides high
information security. Ibid., pp. 9“11.
81
ICC, Assembly of States Parties, Fifth Session, ˜˜Court Capacity Model,™™ ICC-ASP/5/10
(2006).
140 Building the International Criminal Court

operations. The model could be useful not only in deciding how to build the
Court, but also in explaining to the donor countries how the scale and speed
of the Court™s operations would depend upon the amount of resources
donated. International justice would have to be purchased at a price. While
the Strategic Plan presented the Court™s mission, goals, and objectives, the
Court Capacity Model, unveiled at the same time, presented a dynamic
indicator of how much activity could be undertaken, how the Court™s
of¬cials conceptualized its processes, and how the process could be moni-
tored. The model depended upon the assumptions built into it about, for
instance, the number of personnel needed for the particular tasks enumer-
ated in it, but with any set of assumptions, the model could be used to show
the ASP how much justice activity could be bought for how much money.82
It would be useful not only as a management and budgeting tool, but also to
make the point to the ASP that it was up to the states to decide how much
Court, how much international justice, they wanted.

Strategic Plan for Outreach
Experience from the ad hoc tribunals and strong, consistent messages from
nongovernmental organizations brought home to ICC of¬cials the need for
a coordinated public relations presence. The primary public relations and
information responsibilities fell under the authority of the Registry, which,
according to the Rules of Procedure and Evidence, includes among its many
activities the duty (˜˜without prejudice to the authority of the Of¬ce of the
Prosecutor™™) to ˜˜serve as the channel of communication of the Court.™™83
The Registry™s Public Information and Documentation Section includes a
Library and Documentation Center and a Public Information Unit (PIU),
the latter being the primary information/outreach of¬ce for the ICC. The
Prosecutor™s immediate of¬ce has its own public information adviser, who
also serves as the Prosecutor™s spokesperson. As the Prosecutor played an
increasingly public role, coordination between the Registry™s PIU and the
OTP became dif¬cult, so to coordinate the Court™s overall public infor-
mation and outreach activities, a committee was established in 2004
including representatives from the PIU, OTP, and the Presidency.84
Because of the wide range of audiences that the Court seeks to address,
from government of¬cials and legal scholars to victims of atrocities in
remote locations, and with the urging and examples of networks of

82
Ibid.
83
Rule 13.1.
84
Interviews.
141
Building the Court

international and local NGOs, like many other areas in the Court, of¬cials
decided that a plan and some objectives needed to be worked out. The
resulting Strategic Plan for Outreach, presented to the fall of 2006 ASP,
explains in detail the multiple efforts needed to reach a broad spectrum of
audiences and various components that the Court will include as it develops
outreach programs speci¬c to its activities in each ¬eld.85

OTP Report on Prosecutorial Strategy
The OTP™s 2006 report stated ¬ve strategic objectives for the coming three
years.86 First, it would seek to ˜˜further improve the quality of the prose-
cution, aiming to complete two expeditious trials.™™ Second, it would
˜˜conduct four to six new investigations of those who bear the greatest
responsibility in the Of¬ce™s current or new situations.™™ Third, it sought ˜˜to
gain the necessary forms of cooperation for all situations to allow for
effective investigations and to mobilize and facilitate successful arrest
operations.™™ Fourth, it would ˜˜continuously improve the way in which the
Of¬ce interacts with victims and addresses their interests.™™ The OTP™s ¬fth
objective was to ˜˜establish forms of cooperation with states and organi-
zations to maximize the Of¬ce™s contribution to the ¬ght against impunity
and the prevention of crimes.™™87
The OTP reiterated the ˜˜one-court principle,™™ showed in a chart how its
strategy lined up with the ICC strategic goals 1 and 2 (discussed previously),
and then stated three principles of prosecutorial strategy: ˜˜positive com-
plementarity,™™ ˜˜focused investigations,™™ and ˜˜maximizing the impact.™™
The Prosecutor™s strategy precluded none of the objectives built into the
of¬ce from the Statute, and gave little evidence for how efforts would be
allocated among them; however, for readers seeking to acquaint themselves
with the challenges facing the of¬ce, it would be an instructive document.
After three years, objectives could be clearly articulated, even if the internal
mechanisms for attaining them remained in ¬‚ux.


CONCLUSIONS

Despite the four-year gap between completion of the Statute and the initi-
ation of Court operations, when the ICC opened for business in 2002, its
form was still largely undetermined. As the new organization came into

85
ICC, Assembly of States Parties, Fifth Session, ˜˜Strategic Plan for Outreach of the
International Criminal Court,™™ ICC-ASP/5/12 (2006).
86
ICC, OTP, ˜˜Report on Prosecutorial Strategy™™ (2006), 1.
87
Ibid., 3.
142 Building the International Criminal Court

being, the consequences of earlier decisions became clearer. Exhortations in
the Statute notwithstanding, selection of the judges appeared more a
political campaign by states than a selection based on merit. Sensitivities to
the Prosecutor™s powers, and the dif¬culty of the position, made this a
surprisingly narrow recruitment.
Once the Chief Prosecutor took of¬ce, the OTP™s operational code
appeared to shift from a formal, civil-law-informed, legalistic approach to a
looser, more politically conceived structure. ˜˜Positive complementarity™™
and ˜˜self-referrals™™ reduced the Court™s challenge to sovereignty and thus
should ease its acquisition of cases and improve its ability, even without
cases in court, to promote states™ actions against impunity.
Tensions among the organs of the Court stimulated administrative
innovations, but these innovations did not resolve the division of labor. This
will be worked out only in practice and by judicial decisions. The President
of the Court staffed the Pre-Trial Chambers mostly with civil-law judges.
The disputes that have so far emerged between the PTCs and the Prosecutor
revolve around rival visions of their relative power, the independence of the
Prosecutor, and the roles of the PTCs. These will ultimately be resolved by
the Appeals Chamber, which includes a mixture of civil- and common-law
judges. Early decisions seem to be leaning in the direction of PTC judicial
discretion, thus toward the civil-law approach.
The Presidency of the Court may be a position with too many duties. The
President is the formal head and chief external representative of the Court
as a whole and a judge member of the Appeals Chamber and is responsible
for the administration of the Court. Particularly as appeals activities
increase, these three roles may be more than any individual can fully serve.
Operations of the Court also demonstrate how traditional justice and
new justice objectives are melding. Extensive concern over victims™ partic-
ipation in the Congo case show that the Court is embracing new justice
objectives in the legal process. Less progress has been made toward incor-
porating the restorative objectives embodied in the Trust Fund for Victims,
where a slow start and limited collection of donations implies that its
operations will not soon become a materially signi¬cant part of the Court™s
operation. Unlike the legal process, the Trust Fund falls less under the

<<

. 25
( 54 .)



>>