Some thoughts on what happened at the ASP of the ICC: change the policies before discussing people or budget

The Assembly of State Parties just finished its 10th session in New York. The high point of this session was the selection of the next ICC Prosecutor, to replace Luis Moreno Ocampo, and the winner, unsurprisingly, was Fatou Besouda, the current Deputy Prosecutor. Another issue was the election of new judges and determination of the 2012 budget. At the end of this session, I wanted to share a few thoughts.

On the choice of Fatou Bensouda as prosecutor, I broadly share the enthusiasm of a number of commentators, such as Kevin Heller over at Opinio Juris, Mark Kersten at Justice in Conflict or Bill Schabas. In the few times I have met her, she has come across as thoughtful and pleasant, and seems to have a decidedly less "gritty" style than her soon-to-be-predecessor.
But I do have some lingering concerns. As I said when her name started floating around (see comments section here), I don't think we can just brush under the carpet the fact that she has worked with Luis Moreno Ocampo for the past 8 years. He is certainly personally to blame for a number of errors of the OTP, most notably in terms of communication, but I cannot believe that he is alone responsible for all the blunders of his office. Under his mandate, 2 cases have not been confirmed by a Pre-Trial Chamber (Abu Garda, and more recently Mbarushimana) and the conduct of the OTP in the Lubanga trial should have led to the suspect's release in a number of situations and possibly the removal or at least sanction of the prosecutor. I can't imagine that Ocampo did not have some support from his office, including Bensouda, for a number of these disasters. In this sense, I'm not sure that continuity is such a good thing.
More generally, I'm not entirely convinced that the general rhetoric of having an African Prosecutor is convincing. I don't see how the criticism of the ICC being an "African Court to Prosecute Africans" is addressed by the designation of Bensouda. This will just be an "African Court to Prosecute Africans by an African"... The real issue is not the nationality of the Prosecutor, it is the policies that are implemented. In this sense I perfectly agree with Bill Schabas, that the nomination of Bensouda can only go so far to mend the perceptions of the Court. Only a change in policy will make any real change in perceptions.

I also wanted to share a few thoughts in relation to the public outcry on the only marginal increase of the budget of the Court. These concerns are relayed here by Mark Kersten.
On the face of it, the 117 million euro budget that was requested by the Court does not seem unreasonable for a permanent international criminal tribunal that is currently involved in 7 countries, with a number of others on the waiting list. As a comparison, this is about the recent yearly budget of the ICTY, involved in only one country, and which is winding down its activities. Certainly, the CICC and Mark are right to express doubts at whether the Court will be able to perform in the future if the increase in activity is not followed by an increase in budget.
But this legitimate question must not prevent us from questioning the way the money is spent. There are some rather futile examples of misspending, such as a full page ad in the Economist. Equally, one could bicker about the salaries that are paid at the Court, which sometimes seem extravagant, especially to the humble university Professor that I am. But more fundamental questions should be raised in terms of priorities and mistakes. How much did the Mbarushimana and Abu Garda investigations cost, for such a poor result? How much has the poorly designed (and made worse by the judges) victim participation system cost the court in money and in time (and therefore in money)? Also, the Court complains that the UNSC is referring situations without contributing to the budget. I have a solution for that. Don't take referrals from the UNSC anymore. For one, they are in some respect contrary to international law, but more pragmatically, doesn't the Court have enough on its plate with State Parties, without delving into the affairs of non-State Parties? These are just a few policy considerations that need to be addressed in order to have a full and comprehensive discussion on the budget.

On a final note, I couldn't help but react at Mark's conclusion:

In the end, there is a grave danger that money determines who receives justice and who doesn’t; that funding defines the quality and extent of justice served. It would be a sad world to live in and one in which international criminal justice’s skeptics and cynics win.

I don't know in what world my esteemed colleague has indeed been living in to make such a statement, but in the one I live in, this is already the case, and not just at international tribunals. We live in a worlds of limited means and ressources and there is always a limited budget for any institution, both nationally and internationally, and, in other words, never enough money. I think that one can say that without being labelled as a "cynic" or "skeptic". That's just the nature of things. More specifically, all the national examples of criminal systems are suffering from too many cases, where the exercise of discretion is necessarily also based on the question of limited means, and where release decisions from prison are for example based on them being too full, rather than on criminological reasons. And one criteria to discriminate one case from another, is gravity, which is either ignored or misapplied at the ICC. Again, for me, neither Lubanga (at least for these charges), nor Abu Garda, should have been prosecuted before the Court, irrespective of money.

In this sense, I would conclude in the same way as for the nomination of Fatou Bensouda: change the policies, in order to change anything. One can pour in as much money as one wants in the institution, if the policies are unsound, it won't make a difference to the objectives of justice of the Court.