The power of the ICC remains with its big four funders: Germany, Britain, France, and Italy. They dominate the Court, they make the running and the decisions: It is their Court, just as to all intents and purposes they dominate the EU.
Chris Patten, the former EU commissioner for external relations, admitted: “The EU had been a strong supporter of the establishment of the ICC; we had worked for years to achieve its creation; we helped to fund organisations that themselves acted as advocates for the court. Europe had adopted a common position on this.”
John Rosenthal, the American commentator, agreed: “In the form in which it emerged in Rome, the ICC is, more humbly and realistically, just a project of the European Union.”
The EU’s avid support for the ICC, from conception to Statute and beyond is a matter of record. The EU’s support goes back two decades. Judge Sang-Hyun Song, president of the ICC, in a keynote speech to European parliamentarians in October 2009 acknowledged the EU’s pivotal role within the ICC: “The [European] Parliament was instrumental in mobilising the forces that brought the ICC into existence,” he said matter-of-factly, before acknowledging the EU’s key funding of pro-ICC NGOs: “Beyond the assessed contributions of its member states, the EU has provided critical financial backing for PGA [Parliamentarians for Global Action] and other effective civil society proponents of international criminal justice.”
The EU clearly dominates the ICC financially. The EU openly admits that “since the set-up of the ICC, EU member states have been the main contributors to the ICC”. Up to July 2007, EU member states provided 75.6% of the ICC’s resources. Funding by Japan, following its accession in July 2007, saw this EU contribution decrease to 57.4%, but it remains pivotal.
Staffing-wise, while the ICC gives a large number of administrative positions and sinecures to a wide range of nationalities, this is window dressing. The power remains with the big four funders: Germany, Britain, France and Italy. They dominate the Court, they make the running and the decisions: It is their Court, just as to all intents and purposes they dominate the EU.
In the ICC Assembly of States Parties, the EU again plays a pivotal role as the largest player and biggest funder. The Israeli researcher, Seth Frantzman, says: “The Court is primarily European-run. Yet those it judges are not from Europe; they are usually [taken] from their home countries and shipped to Europe to sit in a European prison… This is at best an unfair system and at worst a colonialist one.”
The EU used the revised Cotonou Agreement which entered into force in 2002 to coerce African states to sign and ratify the ICC Rome Statute. The consequences of an ACP state not ratifying all of the Cotonou Agreement, including the ICC clauses embedded in it, were clear: That country would lose hundreds of millions of euros in “development” aid.
In 2008, the EU clearly stated its pivotal involvement with the ICC: “The EU will continue to use all means available to it to promote the ICC in its policies and the principles of international criminal justice. It will accordingly bring the ICC into its policies, particularly in development, conflict prevention, justice, freedom and security.”
To this end, since 2002 the EU has issued over 275 démarches (approximately 60 per year) targeting more than 110 developing countries and international organisations, to encourage the ratification and implementation of the Rome Statute, as well as ratification of the Agreement on Privileges and Immunities. This in and of itself provides irrefutable evidence that the EU is the political engine at the heart of the ICC and its promotion.
The EU even admits that: “The ICC is mainstreamed into EU internal, as well as external, policies targeting areas where the Court is under-represented, such as Asia, Central Asia and the Middle East.”
From 2002 onwards, the EU funded a further 21 pro-ICC NGO projects to the value of more than €17m. Much of this funding went to international ratification campaigns for the ICC. In addition to financially sustaining the ICC, the EU also dominates the ICC by way of employees, especially at executive level. As of 30 April 2009, European states provided 59.6% of the ICC’s employees (the “target” had been set at 47%).
The 2009 report of the 8th Session of the ICC’s Assembly of States Parties demonstrates the extent to which the professional staff of the ICC is top-heavy with Europeans and Westerners. Out of 294 professionals, 147 come from Europe, Australia, Canada, New Zealand and the US (perhaps surprisingly given that their country has not ratified the Rome Statute).
France accounts for 47 members of staff alone, the UK and Germany 19 each. Of the top D-1 grade, Europe contributes five staff members out of 7 and Africa 1. Within the next grade down, P-5, Europe accounts for 14, the US 1 and Africa 6 staff members.
When it comes to the P-4 grade, Europe has 36 out of 55 positions, USA 3, and Africa 4. This was 2009, since then an African, Fatou Bensouda of The Gambia, has been promoted to become the next chief prosecutor of the ICC when Moreno-Ocampo’s term ends in June this year. What qualitative change that will bring to the ICC’s relationship with Africa is yet to be seen.