Efficiency in the drafting stage of the Rome Statute

Where did efficiency feature in these negotiations? Both the ILC working group and the majority of Ad Hoc Committee delegates were uninterested in questions of organisational efficiency and cost-effectiveness. In the 1950s, concerns about any future body’s ineffectiveness were considered political rather than ‘legal or technical’ questions which should be left for the General Assembly to weigh up.497 In the ILC working group forty years later, the desire for a full-time body was said to rub up against the practical need for flexibility. It seemed that permanence and efficiency were mutually exclusive, as suggested by the UN Secretary-General’s 1995 observation that a non-standing body would be more ‘consistent with the goals of flexibility and cost-efficiency’ than a permanent one.498

This zero-sum configuration of ICJ as either fully institutionalised and possibly inefficient, or efficient but potentially skeletal and non-uniform began to change during the Ad Hoc Committee discussions, particularly as a result of interventions by the United Kingdom and the United States. During an April 1995 session of the Committee, the UK delegation asked participants to ‘constantly bear in mind this question: is it the best use of limited resources to undertake international investigations and prosecutions with all the difficulties and duplication of personnel that that involves…?’499 _{In keeping with some of the ILC’s earlier proposals, but}

also with an eye on finances, the UK suggested instead that resources ‘continue to be devoted to national prosecutions’.500

US representatives raised similar concerns even if they tacitly accepted the call for permanence.501 Scrutinising the 1994 draft Statute, the US warned that it ‘contain[ed] no provisions regarding the budget and administration of the court’.502 Harking back to its managerial concerns at the UN, the US argued that ‘[i]n order to provide for effective

497 _{ILC Report 1950, para. 139.}

498 _{ICC Ad Hoc Committee, Provisional Estimates of the Staffing, Structure and Costs of the Establishment and}

Operation of an International Criminal Court, Preliminary Report of the Secretary-General, A/AC.244/L.2, 20 March 1995, para. 5.

499 _{United Kingdom, Ad Hoc Committee on the Establishment of an International Criminal Court: Summary of}

Observations Made by the Representative of the United Kingdom of Great Britain and Northern Ireland on 3, 4, 5, 6 and 7 April 1995, press release no. 32/95, 7 April 1995, 11–12 https://www.legal-tools.org/doc/664ac1/pdf/.

500 _{UK Comments at Ad Hoc Committee, 12.}

501 _{ICC Ad Hoc Committee, Comments of the United States of America, Comments received pursuant to}

paragraph 4 of General Assembly Resolution 49/53 on the Establishment of an International Criminal Court’, Report of the Secretary-General, A/AC.244/1/Add.2, 31 March 1995, para. 3 https://www.legal- tools.org/doc/866fdd/pdf/ (‘US Comments at Ad Hoc Committee’).

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functioning and adequate oversight, a number of such matters must be addressed’.503 _US

delegates deemed cost-effectiveness to be ‘of the highest priority in the consideration of the draft Statute and the ability of the international community to support the international criminal court’.504 These interventions by two influential would-be states parties raised the status of efficiency concerns within the negotiations.

By September 1995, delegates began to countenance the possibility of a permanent and efficient court. This approach was most apparent in the deliberations on draft article 4(1):

The approach reflected in article 4, paragraph 1, of the draft statute, whereby the court would be established as a permanent institution which would act when required to consider a case submitted to it, was described as an acceptable compromise which sought to strike a balance between, on the one hand, the requirements of flexibility and cost-effectiveness in the operation of the court and, on the other hand, the need to promote, as an alternative to ad hoc tribunals, a permanent judicial organ, able to ensure uniformity and consistency in the application and further development of international criminal law.505

Such a conclusion reflects a shift in the drafters’ thinking to provide a space within the future permanent institution for efficiency considerations. Having made that slight yet significant move, delegates set aside further discussion of efficiency and cost-effectiveness concerns until after the court’s jurisdictional limits and structures had been settled. Thus, one group of Ad Hoc Committee delegates stated in August 1996 that

at this point of our deliberations, financial considerations should not focus on cost factors. This is something that should be taken up later in the context of a feasibility study that would outline the administrative structure, personal requirements, resources requirements, and other costs relating to the entire body.506

Efficiency concerns would be delayed until after the court’s basic features were settled. In the meantime, it was decided that the court would have jurisdiction to prosecute individuals, but

503 _{US Comments at Ad Hoc Committee, para. 3.} 504 _{US Comments at Ad Hoc Committee, para. 74.}

505 _{UN General Assembly, Report of the Ad Hoc Committee on the Establishment of an International Criminal}

Court, A/50/22, 7 September 1995, para. 18.

506 _{ICC Preparatory Committee, Proposal submitted by Algeria, Egypt, Jordan, Kuwait, the Libyan Arab}

Jamahiriya and Qatar on the Organization of the Court, A/AC.249/WP.43, 23 August 1996, para. 2 https://www.legal-tools.org/doc/0c21f2/pdf/.

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not corporations. It would investigate and prosecute a small number of ‘core’ international crimes which excluded offences such as slave trading or drug trafficking, while prioritising crimes causing direct and physical violence. The court would have jurisdiction to assess criminal activities committed after the state had ratified the Statute or in any case only upon the Statute’s entry into force. And the Rome Statute, like any treaty-based system, would be predicated on the formal consent of states, excepting situations referred by the UN Security Council under article 13(b). After solidifying these parameters of ICJ, efficiency concerns re- entered discussions. In fact, efficiency was thrust to the forefront of drafters’ minds in the run up to the Rome Conference due to two factors in particular: the outcome of negotiations on the court’s funding model, and managerial developments at other tribunals. I consider these in turn.