By Rachel Irwin in The Hague (AR No 238, 9-Dec-09)
The International Criminal Court, ICC, faces serious logistical and legal challenges in 2010 as financial constraints could force three major trials into a single courtroom.
Part of the problem is that the ICC's second courtroom is being used by the Special Court for Sierra Leone for the trial of former Liberian president Charles Taylor, which is expected to last until at least mid-2010.
But even if the second courtroom was available, analysts say it might not make any difference, as the ICC cannot currently afford to operate more than one courtroom at a time. The court based next year's budget projections on the idea that trials would run one at a time or in rotation.
Practically, this means that one trial will likely be held in the morning, another in the afternoon. When one of those trials enters recess, a third could resume.
So three separate cases - against Thomas Lubanga; Germain Katanga and Mathieu Ngudujolo; and Jean-Pierre Bemba, all from the Democratic Republic of Congo, DRC - are likely to share a single courtroom in order to save money.
Observers say this could cause major logistical problems and also threaten the right of defendants to be tried within a reasonable amount of time.
"It's a concern to think that we can finally get to the stage where we have ... defendants before the court and we're told there aren't enough resources to facilitate the trials in an expeditious manner, and of course that impacts on the fair trial rights of the defendants," said Lorraine Smith, who monitors the ICC for the International Bar Association.
Proceedings in the case of former militia leader Lubanga have been stalled for several months but are now scheduled to resume on January 6.
The trial of ex-militia chiefs Katanga and Ngudujolo, which began on November 26, was adjourned on December 2 and will resume on January 26.
The case of former vice-president Bemba, accused of crimes in the Central African Republic, will start on April 27.
In addition, there are likely to be hearings related to Sudanese rebel leader Abu Garda - who recently had his confirmation of charges hearing - and court activity surrounding the prosecutor's recent request for judges to authorise an investigation in Kenya.
Analysts are wondering how the ICC will cope.
"It's quite difficult to manage all of those [cases] with limited facilities and limited resources," said Elizabeth Evenson, a lawyer with the international justice programme at Human Rights Watch.
While its budget only allows for consecutive trials, the ICC has indicated that it has at least thought of how it would be able to cope with parallel proceedings, if they were deemed necessary.
Speaking at a recent press conference, ICC registrar Silvana Arbia said that "three trials running ... will create difficulties, but we will manage and try to minimise risks".
Sonia Robla, head of public information at the ICC, elaborated in a statement to IWPR, which said, "In case there are simultaneous trials, and if all existing resources are [used] up, the court has the possibility to use the contingency fund."
The contingency fund is a ten million euro pot of money, which allows the ICC to pay for events that were not foreseen when the budget was drafted.
But the idea that the fund could be utilised to fund the scheduled trials has raised some concern with court observers.
"We are not comfortable with resorting to the contingency fund where the particular activity is foreseeable," Smith said.
Robla said that the court is about to finalise a plan that will consider how the three trials anticipated for next year can be held. She declined to give further details.
Over the long term, running trials consecutively will cost about the same as running trials in parallel, since the number of resources that each trial needs is similar.
But for the next year, the period for which the budget is approved, holding trials in one courtroom - though not necessarily completing them - will save money.
The court has to pay translators - usually for at least three languages - and also manage the technologies required to stream hearings on the court's website and deliver real-time transcripts to those inside the courtroom.
In addition, trials need court officers to assist with various aspects of the proceedings as well as security guards, who are required to monitor the public gallery and the defendants inside the courtroom.
The court has been under growing pressure by the countries that support it not to increase costs.
The budget for 2010 was thrashed out at this year's Assembly of States Parties, ASP, which met in The Hague in late November. Each year, the 110 countries who fund the court decide on a final budget, which this year amounts to about 103 million euro.
While that budget still does not provide funds for simultaneous trials in the coming year, it is an improvement over last year when the states decided to cut five million euro from the recommended budget of about 100 million euro.
Jonathan O'Donohue, a legal adviser for Amnesty International, said last year's decision to make cuts "undermined the integrity of the process" and ignored the advice of experts who scrutinised the court's proposed budget and made the final recommendations to the ASP.
The process went more smoothly this year, but the ASP did make certain cuts, including a seven per cent reduction in legal aid for defence - although it may be possible to use funds from other programmes.
One of the main factors behind the funding shortfall, O'Donohue said, is a sense among some states that all the money invested so far has produced few results.
"You're looking at a court that's seven years old and has only recently begun its first case," he said, referring to the trial of Lubanga, which finally started on January 26, 2009 after numerous and widely-criticised delays.
"At this particular point in the court's history, there are concerns that there is a lot of investment without a lot of results."
However, O'Donohue said it would be a mistake for the states to total up "the first seven budgets and conclude those hundreds of millions of euro are the cost for the one trial that is taking place".
There is also a growing awareness that international justice is a very expensive venture, as already seen by the International Criminal Tribunal for the Former Yugoslavia, ICTY, and the International Criminal Tribunal for Rwanda, ICTR. Both are temporary tribunals that have cost millions of euro since they began work in the mid-Nineties.
"International justice can be very expensive in terms of setting up and running a court," O'Donohue said, pointing to the costs of salaries, building space, travel, investigations, translators, and legal aid for defendants and victims, among other expenses.
Some states also claim that the global financial crisis has hit hard and they have competing priorities in their own countries, O'Donohue said.
All of these issues play a role in how the ASP sees the court, said Francisco Aguilar-Urbina, the Costa Rican ambassador to The Netherlands and the facilitator of the 2010 ASP working group on the ICC budget.
While acknowledging there is concern among some states that the court has not met expectations, he added that the current economic climate was perhaps a more pressing consideration.
"We are enduring an economic crisis in proportions not seen since the great depression," he said. "It's very difficult to give more money [to the ICC] when at home people are left without hospitals, schools, and basic services."
He insisted that there had not been undue pressure on the court to reduce costs, but pointed out he was not at last year's ASP meeting when the five million euro was cut.
Still, he emphasised that "states have the right to question the use of their own money".
As far as the coming year goes, Smith said that the court will have to figure out a way to hold three different trials in a way that is "effective and expeditious".
And efforts to save money by conducting consecutive trials might not end up being more cost-effective, O'Donohue said.
"This is an example of a situation where... efforts to be efficient can actually result in inefficiencies," he said. "Trials may be delayed or not move as fast as the court wants them to."
Smith agreed, adding that the slow progress of proceedings could end up being expensive.
"You still have to pay staff, you still have to protect witnesses, and you still have to facilitate victims," she said.
There are also concerns that the desire to cut the budget could end up shaping policy at the ICC.
"If you have states that are just interested in reducing the bottom line, and you have cuts that are being recommended not on the basis of really understanding what resources [are needed], you sort of have de facto policy, even if the goal is just to cut costs," Evenson said.
Rachel Irwin is an IWPR reporter in The Hague.