member states that had not signed BIAs, but efforts were afoot further to roll
back the aid restrictions of the ASPA in legislation to be proposed in the
upcoming (newly Democratically controlled) 2007 legislative session.40
The U.S. Decision Calculus
If U.S. policy makers seek immunity from international jurisdiction over
genocide, crimes against humanity, and war crimes, their due-process and
constitutional arguments against joining the Statute are irrelevant. Support-
ing impunity for U.S. citizens can be justiļ¬ed only on the grounds that other
(strategic) U.S. national interests override interests in an international rule of
law. From this viewpoint, the United States should not join the Court. This is
a choice wherein sovereignty overrides legality, and historically most coun-
tries and certainly the United States have readily taken this position.41
If, on the other hand, policy makers decide that adherence to the Statute
would beneļ¬t the United States (by winning friends, by strengthening
deterrence against international crimes, and by making available a new
institution for serving U.S. interests), then the legal arguments are also
irrelevant, but the United States should join. To join would strengthen
neoliberal institutionalist imperatives in favor of the ICCā™s survival and
growth and might at least imply a growing U.S. acceptance of the idea of an
international society bounded by consensual law.
If one exchanges the realistā™s focus on material interests, such as lead-
ership impunity or broadening international support for U.S. policy within
what Hedley Bull called an international system, for a vision of interna-
tional society, then the U.S. position based on exceptionalism and national
advantage is untenable. In Bullā™s model of society, anarchyā™s destructive
effects can be ameliorated by, among other actions, states accepting inter-
national law to which states must be equally subject. There could be an
NGO CICC, ā˜ā˜Are the United Statesā™ BIAs on the Way Out? New U.S. Legislation Points to
a Possible Change in Directionā™ā™ (2006), 20.
See Krasner, Sovereignty: Organized Hypocrisy (1999).
180 Building the International Criminal Court
international societal interest in suppressing genocide, crimes against
humanity, and war crimes. Decisions about the U.S. position on the Court
are thus less questions of legal technicality than of choices between alter-
native visions of the world. If the international society model became pre-
dominant in U.S. politics, it would behoove the United States to accept it as
a new framework for multilateral behavior.
Consequences of the U.S. Position for the Court
U.S. alienation from the ICC has been costly for the Court in at least three
ways. First, since the ICC is funded by assessed contributions from its
member states calibrated (as is the UNā™s regular budget) to the donorā™s
wealth, having the worldā™s wealthiest country outside of the Court reduces
the resources available to it and increases the burden upon the member
states. Second, perhaps more importantly, because of the Courtā™s reliance
on state cooperation to, for instance, apprehend suspects and provide
information, having the worldā™s most powerful country with the most
widely spread military and greatest intelligence capability hostile to it
means that the challenges it faces are even greater than those faced, for
instance, by the ICTR. Even with the (sometimes halfhearted) support of the
United States, NATO, and UN peacekeeping forces, the Yugoslavia tribunal
had trouble bringing suspects to Court. Lacking U.S. support and facing
even more difļ¬cult situations, the prognosis for the ICC is guarded at best.
Third, declared opposition to the Court and threats of aid cutoffs under the
ASPA may also be deterrents to some states that would otherwise consider
acceding to the Rome Statute.
There may be positive sides to U.S. opposition, however. First, U.S.
hostility may have improved the Courtā™s image in some countries. Court
ofļ¬cials and NGO personnel engaged in seeking additional accessions to the
Statute report that in some national capitals, the fact that the United States
opposes the Court attracts ofļ¬cials to sign on.42 Second, U.S. antipathy
might help the Court establish a reputation for independence that largely
eluded the Yugoslavia and Rwanda tribunals. Unlike the tribunals, which
have been staffed primarily by U.S. and British employees, a more inter-
nationally diverse staff at the ICC lends at least the appearance of greater
neutrality, although some critics argue that Anglo-American inļ¬‚uence
remains strong directly and through surrogates in the ICC.43
In particular through ofļ¬cials from the Anglo-American, common-law-dominated countries
Australia, Britain, Canada, Ireland, New Zealand. Interviews.
Despite U.S. opposition to the Court, the ICC is operational. More states
would likely join the Statute if the United States did so, the budget would be
shared more broadly were the United States a contributor, and it would be
easier for the Court to acquire information and cooperation were the United
States a member. Still, even as an institution beginning with a narrower base
than it might desire, leaning more heavily for funds on member states than
it would if it added some additional wealthy countries to its membership,
with the ICC in operation, it is building institutional inertia.
STATESā™ POLICY OVERSIGHT
States affect the ICC by their adherence or opposition to the Statute, as
discussed previously, but once they join, there is still a broad range of
possible forms that their participation can take. Adherents to the Statute
become members of the Assembly of States Parties to the Rome Statute, the
ICCā™s legislative body, and thus can play some role in the oversight and
guidance of the Courtā™s governance. Chapter 4 already described the ASPā™s
role in approving the Rules of Procedure and Evidence and the Elements of
Crimes, in electing Court ofļ¬cials, and in urging the Court to develop a
strategic plan. In this section, ASP considerations about the Courtā™s budget,
and particularly permanent premises for the Court; the Victimā™s Trust Fund,
which has important implications for implementation of the new (restor-
ative) justice mandate; and extension of jurisdiction over the crime of
aggression, which may affect statesā™ support and opposition to the Court
generally, illustrate how important the ASP can be to the Court. The ASP
thus has major responsibilities toward, and power over, the Court, but in
the ICCā™s early years, the ASP did not assert control strongly.
Budget as Policy
The Court itself, led by the Registry, develops the organizationā™s draft
budget, which is then considered (and, if so decided, modiļ¬ed) and
approved by the ASP. The ASP created a Committee on Budget and Finance,
to which members (who are not necessarily part of statesā™ delegations to the
ICC) are elected for their expertise in budgetary and ļ¬nancial matters, to
work with the Court to develop the budget and to report its recommen-
dations on the Courtā™s proposals to the ASP at its annual meeting.
From the Courtā™s ļ¬rst year, the CBF has been heavily involved with the
Registry to craft an increasingly transparent and orderly budget devel-
opment process and has subjected the Courtā™s proposals to painstaking
182 Building the International Criminal Court
line-by-line scrutiny. The CBF issues a report to the fall ASP meeting making
recommendations on approval and denial of proposed budget items. (Simi-
larly, the CBF reacted to the Strategic Plan and the Court Capacity Model
(Chapter 4) in fall 2006, calling for more explicit expenditure targets and
clear evaluation processes.) The ASP has largely shied away from directly
guiding Court policy, but the CBFā™s recommendations and ASP actions on
the budget constitute a strong policy inļ¬‚uenceā“for example, in CBF recom-
mendations that new expenditures for outreach programs and ļ¬eld ofļ¬ces be
smaller than those requested by the draft budget and urged by NGOs in 2005
and 2006,44 and by ASP adoption of the CBF position in 2005, but its
rejection in 2006 and replacement with a large increase in outreach funding
(as pushed by NGOs), from e1.4 million to e2.7 million for 2007.45
ASP decisions about the funds and plans for the Courtā™s permanent
premises will also have huge policy consequences. The Dutch government
promised ļ¬nancing and facilities for temporary premises for the ten-year
period 2002ā“12. Given the long lead-time needed for architectural studies,
fundraising, planning, and construction, decisions about the location, size,
and characteristics of the permanent premises rapidly became pressing.
Those decisions require a long-term vision of the Court.
The ASP created a Working Group on the Permanent Premises, and
along with the CBF, Court personnel, and Dutch government ofļ¬cials,
discussions were already under way in 2004. Three alternatives were pre-
sented to the fall 2005 ASP: expansion of the current temporary premises,
location of an alternative existing facility to which the Court could be
moved, or construction of wholly new facilities. The Dutch government
proposed to assist the Court with ļ¬nancing and architectural services for
permanent facilities on the grounds of a disused military facility on the
outskirts of The Hague, the Alexanderkazerne. The fall 2006 Assembly of
States Parties decided to proceed on the basis of the Alexanderkazerne
The new premises represent a huge ļ¬nancial investment (on the order of
hundreds of millions of Euros) and critical policy choices for the ASP.
Planning the new premises requires making assumptions about the number
and occupations of people who will work in the Court when it reaches its
ICC, ASP, Fourth Session, ā˜ā˜Report of the Committee on Budget and Finance on the Work
of Its Fifth Sessionā™ā™ ICC-ASP/4/27 (2005), para. 68, recommended reduction of the
Registryā™s request for eleven new positions in outreach to eight such positions; ICC, ASP,
Fifth Session, ā˜ā˜Report of the Committee on Budget and Finance on the Work of Its Seventh
Sessionā™ā™ ICC-ASP/5/23, 2006, para. 77, also reduced Registry requests.
Boyle, ā˜ā˜ICC Outreach Budget Gets Big Boostā™ā™ (2006).
steady-state size, thus how much the Court can do, and about whether the
Court will do most of its work at headquarters or become decentralized to
facilities closer to where crimes took place and where victims would have an
easier time seeing justice done. In May 2007, the CBF indicated that
planning was proceeding on the basis of two scenarios: a ā˜ā˜targetā™ā™ scenario
of the needs of the Court as of the year 2012 and a ā˜ā˜growthā™ā™ scenario for
expansion thereafter. The ā˜ā˜targetā™ā™ staff size was estimated at 1,137; the
ā˜ā˜growthā™ā™ staff, at 1,364;46 both were comparable to the ICTY at its largest.
Already in 2006, Court and NGO ofļ¬cials and some state representatives to
the Court were worried that progress toward the permanent premises was
too slow, and that the Court might face an interregnum between expiration
of Dutch support for the temporary facilities and completion of a perma-
nent headquarters that would add confusion and expense to the Court.
They pressed for accelerated ASP action.
Clarifying the Mandate ā“ the Trust Fund for Victims
Under the Statute, the Court is directed to establish a Trust Fund for Victims
(VTF) in response to restorative justice, victim-oriented principles promoted
by NGOs, and civil-law states. The Statute left to the ASP determination of
how the VTF would operate. Unlike the Statuteā™s extensive speciļ¬cation of
legal principles and judicial processes, the victim-oriented aspects of the
Court were sparsely addressed. The ASPā™s decisions ultimately tilted slightly
more toward a civil-law and victim-oriented position than to common-law
principles, but they also demonstrated the ASPā™s preference to leave ļ¬nal
determinations to the Courtā™s judges and to the VTF board of trustees. The
outcome of the VTF debate did not demonstrate decisive ASP leadership of
the Court. Rome Statute Article 79 called for the establishment of a Trust
Fund ā˜ā˜by decision of the Assembly of States Parties for the beneļ¬t of victims
of crimes within the jurisdiction of the Court, and the families of such vic-
tims.ā™ā™47 The Court (judges) may order money and other property from the
ļ¬nes or forfeiture exacted against convicts to be transferred to the Trust
Fund.48 The Court can also acquire other funds, but Article 79 doesnā™t
indicate what those sources of funds might be. The details of fundraising and
management were left to the ASP.49
ICC, ASP, Sixth Session, ā˜ā˜Report of the Committee on Budget and Finance on the Work of
Its Eighth session,ā™ā™ ICC-ASP/6/2 (2007), 11.
statute Article 79.1.
Statute Article 79.2.
Statute Article 79.3.
184 Building the International Criminal Court
The Statute refers to victims of crimes over which the Court has jurisdiction,
but it does not specify how such a victim ofļ¬cially becomes one from the
standpoint of the Court. For civil-law states and those concerned to enhance
the victim orientation of the Court, victims should come under the purview of
the Court as soon as possible once crimes have been determined to have
occurred. Civil-law and victimsā™ advocates argued that the VTF board should
be able to begin operations as soon as situations had been speciļ¬ed, early in the
For common-law states, victims are people who have suffered from crimes
the perpetrators of which had been convicted. With conviction comes cer-
tainty. Common-law states viewed the VTF with concerns about due process
and fairness. How could the VTF determine that victims existed before a trial
was completed? If it did so, couldnā™t this prejudice the rights of a defendant?
Furthermore, if victims were disconnected from speciļ¬c perpetrators, did this
mean that they were victims of the general situation ā“ in which case huge
numbers of people might have claims to pursue from the Court? Given the
likely limited resources of the Court, wouldnā™t this be a formula for frustration
of victims and failure of the Court, rather than a boon to its legitimacy?
In 2002, the ASP adopted a Preparatory Commission recommendation to
establish the trust fund for victims mentioned in the Statute50 and created a
board of directors to set up and run the fund.51 The Courtā™s Registry was to help
the VTF board, but the ASP also envisioned appointing an executive director
and staff for the fund.52 It still needed to name a board and for the new board to
develop its rules of operation. The rules had to be approved by the ASP.
Former President Oscar Arias Sanchez of Costa Rica, former Polish
Prime Minister Tedeusz Mazowiecki, Queen Rania al-Abdallah of Jordan,
Archbishop Desmond Tutu of South Africa, and former Minister of Health of
France and President of the European Parliament Simone Veil were elected to
the board at the September 2003 second ASP. During 2004, NGOs proposed
draft regulations for the fund and pointed out, among other concerns, that
the Statuteā™s designation of victims as people who had suffered from crimes
over which the Court had jurisdiction was quite vague.53
ICC, ASP, ā˜ā˜Establishment of a Fund for the Beneļ¬t of Victims of Crimes within the
Jurisdiction of the Court and of Families of Such Victims,ā™ā™ First Session, Ofļ¬cial Recards
(2002), ASP/1/Res. 6.
Ibid., Annex, para. 1.
Ibid., para. 6.
For example, REDRESS and Forensic Risk Analysis, ā˜ā˜The International Criminal Courtā™s
Trust Fund for Victims: Analysis and Options for the Development of Further Criteria for
the Operation of the Trust Fund for Victims, Discussion Documentā™ā™ (2003).