1. Introduction
[I]nternational justice is cheap . . .. Our annual budget is well under 10% of Goldman Sachs’ profit during the last quarter. See, I can offer you high dividends for a low investment.
Carla Del Ponte, former Prosecutor for the International Criminal Tribunal for the former YugoslaviaFootnote 1
The logic of the market has become so embedded in late modern thought that this claim from a 2005 speech by then-Prosecutor at the International Criminal Tribunal for the former Yugoslavia to an audience at the investment bank Goldman Sachs may at first seem unremarkable. The fact that international criminal justice draws upon market-based rationalities is unsurprising – perhaps even an existential necessity – if it is to sustain itself in its current institutional forms. International criminal tribunals are expensive to operate, given the restricted number of individuals that they try.Footnote 2 In light of the relatively high costs per defendant in an international criminal trial, tribunal proponents must regularly explain to government donors and other interested parties why individual criminal accountability for a small number of alleged perpetrators should contribute to a broader set of interests involving peace, security, and development – in the words of Del Ponte, why these trials yield ‘high dividends for a low investment’.
Proponents of international criminal justice increasingly describe its work in a neo-liberal idiom,Footnote 3 invoking the language of performance-based appraisals and cost-effectiveness. This language appears to varying degrees in the scholarly literature: for example, a recent publication undertakes what its author terms a ‘balanced scorecard analysis’ of international criminal tribunals,Footnote 4 and others ask whether the ad hoc tribunals for Rwanda and the former Yugoslavia are ‘providing value for money’.Footnote 5 Such market-driven logic may also seem familiar to administrators of international criminal courts, who frequently double as fund-raisers for their institutions while dealing with the daily responsibilities of court operations. Seeking financial support directly from states and private-sector donors seems to be the main way to fund international criminal justice in cases in which tribunal operating costs are not officially covered by the UN budget.Footnote 6
This article argues that this familiar market-oriented framing of international criminal justice deserves further critical consideration, as the objectives and imperatives of justice may not be so readily translated into the terms of a market economy as the discourse suggests. Instrumental visions of post-conflict tribunals seem particularly contentious when compared with the field's public-law aims, which, in theory, aspire to generate international criminal accountability as an end in itself or as a basis for deterring future crimes. What does it mean to instead conceive of international criminal justice as a kind of product on a market? What sort of market would it be competing in? Who invests in it, and what is their anticipated return? The rise of donor-driven logics within the field of international criminal justice has been underexplored to date within the scholarly literature on international criminal tribunals. As the field expands, accompanied by new court forms and new funding arrangements, the phenomenon of donor-driven international criminal justice should be explored more thoroughly.
This article addresses what I call ‘donors’ justice’ as a contemporary form of international criminal accountability. Section 2 of this article sketches the contours of donors’ justice, which I describe as a constellation of discursive, political, and economic forms that contemporary international criminal justice may assume. Section 3 links international criminal accountability to other donor objectives, including security, governance, and development. Section 4 turns to the Special Court for Sierra Leone (the ‘Special Court’ or the ‘SCSL’) as an example of the various implications of donor logics for the field of international criminal justice. The phenomenon of donors’ justice appears quite clearly at the Special Court for structural reasons: as I will explain in greater detail below, the SCSL's reliance upon voluntary contributions makes it particularly susceptible to market fluctuations and shifting donor imperatives.
2. Conceptualizing donors' justice
Donors’ justice can be defined as third-party financial support for the work of international criminal-justice institutions, where funders are not a party to the conflict that the court was set up to adjudicate.Footnote 7 As an analytic frame, it includes discursive, economic, and political strands that overlap in practice. Discursively, donors’ justice begins from the neo-liberal premise that justice can be subjected to market rationalities. International criminal accountability is described as an investment for interested third parties, as Del Ponte's speech suggests. Politically, donor states may regard international criminal courts as vehicles for their own foreign-policy objectives, including security, governance, and development. The pursuit of international criminal justice thus offers donor states another avenue for furthering their interests, whether benevolent or strategic. Economically, institutions and their proponents offer international criminal justice as a product on a broader market in competition with other tribunals and recipients of donor support. Courts with voluntary funding arrangements particularly suffer from underfunding as a result of this subjection to market forces and, as a consequence, more institutional energy is devoted to fund-raising activities.Footnote 8 In addition to revealing how international criminal justice operates within and between these discursive, political, and economic fields, the analytic frame of donors’ justice highlights the different actors – states, civil-society organizations, and the institutions themselves – who participate in the production and consumption of international criminal justice. Largely absent from this analytic frame are the conflict-affected communities in whose name these tribunals claim to operate, although they often provide the ethical and rhetorical force for justifying donor investments in tribunal proceedings.
Critical scholarship on international criminal courts and tribunals has focused on a number of issues, including their political origins,Footnote 9 their participation in other governance objectives,Footnote 10 their overly Western legal approach at the expense of other cultural considerations,Footnote 11 their failure to acknowledge the economic dimensions of conflict,Footnote 12 and even the shortcomings of their expatriate personnel.Footnote 13 What has been largely missing from this body of critical scholarship is an interrogation of the donor–beneficiary relationship between states and private-sector actors on the one side and the tribunals themselves on the other. Little has been written about the figure of the donor or what the consequences of this dynamic might be for contemporary forms of international criminal justice. When tribunal funding is mentioned, it is usually recounted descriptively – as a fact to report – rather than as a subject deserving further attention.Footnote 14 Academic articles and reports from non-governmental organizations frequently document the problems of underfunded tribunals, but the donor-driven funding phenomenon itself is rarely analysed within the scholarly literature.Footnote 15
This article attempts to address this gap by examining the phenomenon of donors’ justice at the site of one of three currently operating international criminal tribunals that rely on voluntary contributions from states, the Special Court for Sierra Leone, which is nearing completion of its mandate. The Special Court was the first of these tribunals designed to be funded entirely through voluntary state contributions, although similar financial models followed at tribunals for Cambodia (ECCC) and Lebanon (STL). The voluntary funding structure pioneered by the SCSL casts states as potential donors rather than as assessed contributors to court operations, which distinguishes it from the United Nations-backed ad hoc tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY).Footnote 16 Although this article focuses on the work of the SCSL, the donors’-justice analytic is also applicable to aspects of the work of the ad hoc tribunals and the permanent International Criminal Court (ICC).Footnote 17 The Special Court presents a particularly strong case study for the implications of donors’ justice given its funding through voluntary state contributions, which makes it more vulnerable to market forces than tribunals funded through United Nations-assessed contributions.
One qualification is in order: the fact that tribunals are funded through state or private-sector donors does not necessarily taint the outcomes of their judicial processes by compromising judicial independence or the integrity of the proceedings. These arguments have been made elsewhere, often by defence lawyers working in the tribunals with their own clients’ interests to consider.Footnote 18 I am not suggesting that the outcome of donors’ justice is a foregone conclusion, nor do I claim that donor relationships impact tribunal proceedings directly by influencing judicial behaviour. Instead, this article explores the implications of conceiving of international criminal justice as an investment for interested third parties: a political economy of the ‘new tribunalism’.Footnote 19
3. Juridical investments
We are now nearly two decades into a widely acknowledged expansion of international criminal law, which is often categorized as ‘transitional justice’ in the scholarly literature. This expansion is largely attributed to the end of the Cold War and to a renewed interest in accountability for mass crimes, and it has produced a number of beneficiaries beyond the individuals seeking legal redress for the wrongs they suffered. A growing class of international criminal lawyers has emerged as a set of professional stakeholders in the field's development, and legal education has expanded to include specializations in what was previously a subfield of public international law.Footnote 20 It would seem that the ‘dividends of international criminal justice’, to quote the title of former ICTY Prosecutor Del Ponte's speech noted above, are multiple and diverse: there is an expanding field of professional knowledge accompanied by a market-driven demand for teaching, training, and practice, as well as the indirect effects that this profession has on state and local economies, whether in Freetown, Phnom Penh, or The Hague. This is a different set of ‘dividends’ from what the prosecutor's speech envisions. Del Ponte focuses instead on the impact that international criminal justice might have on conflict and post-conflict settings, and tribunals are described as wise, low-cost investments in regional stability. In addition, Del Ponte notes the benefits that private corporate entities – such as Goldman Sachs, the addressee of her speech – might stand to gain from international criminal proceedings:
The UN is dealing with many issues that the private sector is not able to deal with. It is dangerous for companies to invest in a State where there is no stability, where the risk of war is high, and where the rule of law doesn't exist. This is where the long term profit of the UN's work resides. We are trying to help create stable conditions so that safe investments can take place. In short, our business is to help you make good business, in the expectation that a stable, reasonably prosperous democracy will be a factor of peace and stability in the world.Footnote 21
Neither the proceedings directed at individual criminal accountability nor the possible advantages these proceedings might provide for regional peace and security are presented to this particular audience as the ends of international criminal justice. Instead, Del Ponte tells Goldman Sachs employees that her objective is to ‘create stable conditions so that safe investments can take place’. The ICTY is thus cast as a United Nations-backed public institutional guarantor of private economic interests. This high-level court representative suggests that the purpose of the tribunal is to route economic objectives through the vehicle of an international criminal court. ‘Our business is to help you make good business,’ Del Ponte claims, suggesting that the ICTY is providing a security service to lay the groundwork for economic development. Here, the objectives of ending impunity and securing regional peace appear to be overshadowed by the economic dimensions of transitional justice.
As Del Ponte's account illustrates, international criminal justice is increasingly presented in neo-liberal terms; that is, the objectives and processes of international criminal tribunals are described in the language of the market economy. The 2005 Goldman Sachs speech thus serves as a particularly striking example of the wider discursive phenomenon of donors’ justice. International criminal courts are described as one of many investment options for states or other organizations. States and private-sector actors are often figured as ‘donors’ within this relatively recent marketplace of security and development objectives. For example, at a 2007 conference entitled ‘Donor Strategies for Transitional Justice: Taking Stock and Moving Forward’, most participants were affiliated either with the development branches of wealthy states or with charitable foundations.Footnote 22 Accountability for international crimes was featured among the various projects that these states or other actors might elect to fund. From their positions as donors, states and foundations are encouraged to assess whether the aims of an international criminal tribunal might fit with their particular policy objectives in development or in the ‘rule of law’.
Conceptualizing post-conflict criminal justice as an investment marks a broader shift in the social role of international criminal tribunals, which are commonly regarded by potential donors as security or development initiatives. A technocratic field of expertise has developed around ‘rule-of-law’ interventionsFootnote 23 and criminal tribunals are presented as one option in a field of governance and development techniques. David Kennedy has argued that law and development have become increasingly bound up together: ‘the “rule of law” defines the good developed state . . .. As a result, implementation of familiar legal institutions and constitutional forms has become central to development policy making'.Footnote 24 Fostering accountability for crimes under international law may appear as a ‘rule-of-law’ project to prospective donors, more akin to domestic legal-reform initiatives and judicial capacity building than to the traditional justifications for punishment such as retribution, deterrence, and incapacitation.
Law-and-development literature offers a number of relevant insights for ‘donors’ justice’, particularly where the literature intersects with the field of transitional justice, as it places the phenomenon of international criminal accountability in a broader set of relations and values. Paralleling the growth of international criminal justice, law and development has expanded in the last 20 years, with economic liberalization as one of its key principles.Footnote 25 Some scholars have asked about the impact of liberalism and other donor value systems on recipient countries given the overrepresentation of Northern donors in transitional justice projects,Footnote 26 thus recognizing that juridical interventions are neither value-neutral nor benign in many circumstances. Although other conceptions of what is good for recipient countries are widely contested, there appears to be widespread consensus among donors about the value and priority of the ‘rule of law’.Footnote 27 As critical interrogations from within the field have pointed out, however, the ‘rule of law’ ‘advances both principles and profits’;Footnote 28 that is, it seeks ‘to create a “level playing field” for economic actors’.Footnote 29
As one of several policy options for strengthening the ‘rule of law’, then, international criminal tribunals may work to ‘create stable conditions so that safe investments can take place’, to return to Carla Del Ponte's claim. Tribunals thus appear as one instrument in a ‘box of foreign policy tools’Footnote 30 that can be deployed by donor states. Prioritizing this instrument over others has its costs: funding tribunals may come at the expense of restricting other distributive justice efforts.Footnote 31 In the Sierra Leone case, for example, a press release from the Human Rights Commission of Sierra Leone laments the international community's privileging of criminal accountability over victims’ reparations:
HRCSL notes that while over US$82.million has been spent so far on the Charles Taylor trial, as at 30th June 2010, less than US$45,000, has actually been paid into the Sierra Leone War Victims Fund, almost all of it by Sierra Leoneans and their Government.Footnote 32
As some scholars have rightly noted, however, the fact that one mechanism, such as a criminal tribunal, receives funding does not necessarily mean that other development or aid projects would have been funded in the absence of the tribunal.Footnote 33 Nevertheless, what is striking here is who gets to set the funding priorities, or where agency predominantly lies within the framework of donors’ justice. In a donors’ market that is increasingly characterized by blurred boundaries between justice, security, and development objectives, recipient states are the beneficiaries of funding that aligns with donor states’ foreign-policy objectives. As James Goldston argues:
thematic and geographic choices often reflect foreign policy imperatives as much as, if not more than, the relative merits of respective programs . . . rule of law priorities are, to a great extent, shaped by those donor governments who dominate the ‘international community’, and its rule of law expert fellow travelers.Footnote 34
While this may be unsurprising within a law-and-development context, where there is an acknowledged relationship between donor and client, the figure of the donor (and its attendant interests) has rarely appeared in discussions about international criminal accountability.
These insights from law-and-development scholarship highlight the significance of the foreign-policy imperatives of donor states as well as the link between ‘rule-of-law’ priorities and economic development. As previously noted, donors’ justice is characterized by third-party financial support for tribunal activity; unlike so-called ‘victors’ justice’, where tribunals appear as liberal institutional mechanisms for dispensing with political enemies,Footnote 35 donors’ justice is more akin to development aid and ‘good-governance’ initiatives. The tribunal donor is not a direct stakeholder, a victor in a conflict, but rather an interested external actor who stands to benefit in the future rather than meting out a form of legalized retribution in the present. Thus, these tribunals are figured as ‘investments’ in future peace and stability that may yield valuable dividends for agents with financial interests in stable outcomes, as Del Ponte's speech suggests.
On the one hand, this broadening of tribunal stakeholders has the consequence of making the process more public; rather than a relationship between two affected parties, a plurality of actors may participate in the process.Footnote 36 On the other hand, defining interested parties as ‘donors’ restricts membership to states and organizations that are able to offer financial assistance. International criminal justice thus becomes a marketplace for the global ‘haves’ to participate based upon their foreign and domestic agendas. It also may fuel criticism about subsequent decisions that tribunals take in interpreting their mandates. As Martti Koskenniemi points out in relation to the ad hoc International Criminal Tribunal for the former Yugoslavia, ‘The fluctuation of Western support, the visible impunity enjoyed by a large number of important Balkan war criminals, and the failure to prosecute the NATO bombings of Serbia of 1999 have provided space for cynicism and denial.’Footnote 37 The criticism here is twofold: first, donor support waxes and wanes in response to a number of considerations, both political and financial, as the case of the Special Court for Sierra Leone shows. Successful fundraising is linked to performance benchmarks, such as the opening or closing of trials and the perception that cases proceed efficiently. Second, tribunals are beset by structural criticisms related to this donor–beneficiary relationship, where allegations of bias may be perceived as having more merit due to the funding structure itself.
4. Donors' justice at the Special Court for Sierra Leone
This section attempts to illustrate some of the attributes of donors’ justice by taking the Special Court for Sierra Leone as one symptom of the state of contemporary international criminal accountability. The Special Court is a timely and relevant case: it is nearing completion of its mandate and thus offers an extensive history of donor relations, and it was the first tribunal to be funded through voluntary contributions. I argue that the restrictive interpretation of the Court's mandate – which includes a small number of indictees and a heavy reliance upon insider witnesses – as well as the insecure financing of the Court are two notable manifestations of donors’ justice in this case, and the funding structure of the Court renders it particularly susceptible to allegations of political influence by donor states. The Special Court offers examples of the three different strands of donors’ justice described above: its work is described in neo-liberal terms and oriented towards a donor audience, it can be seen as a conduit of political interests in security and development, and its sustainability is tied to broader market forces that affect the funding of its work. The following section briefly sketches the emergence of the Special Court and highlights some of its key attributes before returning to the theme of donors’ justice.
4.1. Background to the SCSL
The history of the decade-long conflict that the Special Court was set up to address has been well documented and is beyond the scope of this article, although it should be noted that in the scholarly literature there are competing accounts of the roots of the conflict, the extent of casualties, and the roles played by external parties.Footnote 38 Most academic commentary notes that the conflict that occurred in Sierra Leone between 1991 and 2002 was causally complex and influenced by residues from the colonial period, post-independence political struggles, and issues of resource allocation. While some accounts centre on the role of diamonds, including statements from the Special Court's first prosecutor,Footnote 39 Sierra Leone's own post-conflict Truth and Reconciliation Commission concluded that ‘unsound governance provided a context conducive for the interplay of poverty, marginalization, greed and grievances that caused and sustained the conflict’.Footnote 40
Many factors contributed to the creation of a post-conflict criminal tribunal in Sierra Leone: an increase in civil-society organizations pressing for legal accountability for gross violations of human rights and the international humanitarian law, a broader cultural climate that fostered the use of internationalized legal mechanisms for post-conflict accountability, the growth of a professionally invested class of legal practitioners and administrators who move from tribunal to tribunal, and a leader in Sierra Leone with a background in diplomatic work. Strong state politics contributed as well: as one commentator recounts, ‘some have even suggested that the promotion of the Court is part of the larger US campaign against the International Criminal Court, as it attempts to demonstrate that alternative models can work’.Footnote 41
At the time of its emergence in 2002, the Special Court for Sierra Leone was widely regarded as a new ‘hybrid’ model of post-conflict justice, pairing the advantages of international criminal justice with a greater awareness of and concern for the domestic context. The Court was consciously designed to address some of the shortcomings of the work of the two ad hoc tribunals for Rwanda and the former Yugoslavia through a less expensive, more streamlined institutional structure.Footnote 42 It was mandated to bring individuals ‘bearing the greatest responsibility’ to account for crimes committed during a specific period of Sierra Leone's decade-long conflict.
The Court was established through a treaty between the United Nations and the government of Sierra Leone. In July of 2000, then-President Ahmed Tejan Kabbah sent a letter to the United Nations requesting international assistance in establishing a ‘Special Court’ to try leaders of the Revolutionary United Front (RUF), the rebel forces that had previously driven him into exile in neighbouring Guinea, ‘for crimes against the people of Sierra Leone and the taking of United Nations peacekeepers as hostages’.Footnote 43 The domestic criminal-justice sector appeared to be incapable of holding trials itself due to lack of capacity; furthermore, RUF combatants had been granted amnesty by the Sierra Leonean government in a 1999 peace agreement. Roughly a year and a half after Kabbah's initial request, representatives of the United Nations and the government of Sierra Leone signed an agreement founding the Special Court for Sierra Leone on 16 January 2002. The tribunal diverged from President Kabbah's original vision of a court that would try leaders of the RUF, as the Court's international prosecutor also indicted individuals from a pro-government militia that had supported Kabbah's regime. The prosecutor ultimately indicted a total of 13 individuals; ten were brought to trial, including the former Liberian president Charles Taylor, despite early estimates of a larger number of potential indictments. As I will discuss in greater detail, this restricted number of indictments is one of the consequences of the Court's voluntary funding structure.
The Court was deliberately located in the country where the conflict took place, in contrast to the more remote locations of the ICTR in Tanzania and the ICTY in the Netherlands, which were established away from the conflict-affected populations in Rwanda and the former Yugoslavia.Footnote 44 The Court's geographical location in Sierra Leone and the inclusion of domestic legal elements in its statute were meant to make it more attuned to the local context and better equipped to engage in a broader pedagogical project on the ‘rule of law’.Footnote 45 The ‘rule of law’ featured prominently in the UN Secretary-General's report on the Court's establishment and in the Security Council resolution authorizing the Court's founding agreement. The SCSL has been lauded throughout its operation as an innovative ‘hybrid’ form of post-conflict justice.Footnote 46 It was designed to integrate international and national criminal law as well as personnel from different jurisdictions, including Sierra Leonean judges and attorneys. In practice, however, the Special Court was less ‘hybrid’ as a matter of law than many of its proponents claimedFootnote 47 and the charging of only international crimes in the indictments was a departure from Kabbah's original vision of a court mandated to ‘administer a blend of international and domestic Sierra Leonean law on Sierra Leonean soil’.Footnote 48
4.2. Security, governance, and the ‘rule of law’
What generated this interest in establishing an ad hoc court in response to mass atrocities when similar efforts in other contexts failed to generate sufficient political will?Footnote 49 The United States, which would eventually become the largest financial contributor to the Court, assumed a key role in the Special Court's establishment.Footnote 50 Commentary on the Sierra Leonean conflict noted a dearth of international interest in addressing the atrocities before the Revolutionary United Front took UN troops hostage in the spring of 2000, although images of brutalities such as amputations and mass killings had been circulating in the Western media throughout the 1990s. Some scholars have attributed previous international apathy in part to American journalist Robert Kaplan's widely circulated 1994 article in the Atlantic Monthly entitled ‘The Coming Anarchy’, which portrayed African conflicts as essentially ‘tribal’ in character, compounded by failed states and environmental degradation.Footnote 51 US policy at the time emphasized negotiation and power-sharing arrangements between former enemy factions rather than judicial accountability. This position appeared to shift following the UN troop abduction, when the assistant secretary of state for African affairs argued before a Senate panel that:
only when the rule of law is extended to all of Sierra Leone's territory and those most responsible for the horrendous atrocities are held fully accountable before a court of law will the population experience the freedom and the confidence necessary to rebuild their war-ravaged country.Footnote 52
‘Rule-of-law’ and ‘accountability’ discourse supplanted pragmatism and political compromise.
This push towards judicial intervention in Sierra Leone eventually succeeded, fostered in part by increasing allegations that Liberian president Charles Taylor was involved in destabilizing the region. Paul Richards describes a ‘change of mood in the last days of the Clinton administration from tolerance of Charles Taylor, the Liberian president, and former Libyan-backed rebel ally of the RUF, to outright hostility’, adding ‘this change of perspective in the Clinton camp helped unite the international community against Taylor’.Footnote 53 In the post-9/11 political climate, the Bush administration was interested in pursuing various avenues that might provide intelligence related to terrorist financing. The Court's Chief of Investigations as well as the first prosecutor had prior experience in US intelligence organizations, and evidence surfaced suggesting that the Office of the Prosecutor had been co-operating with the CIA to pursue regional al-Qaeda links.Footnote 54 Indeed, the third SCSL prosecutor (also a US national) suggested a relationship between the crimes the Court was set up to address and the global problem of terrorism.Footnote 55
The interests of strong states undoubtedly played a role in the creation of the Special Court. As the largest donor to court operations, the United States regarded post-conflict justice in Sierra Leone as part of a broader investment in regional security. This seemed evident in a 2006 speech by David Crane, the former SCSL prosecutor, addressing a US congressional committee shortly before former Liberian president Charles Taylor was apprehended and turned over to the Court. Here, Crane suggests a causal link between the work of the Special Court and peace in neighbouring Liberia, claiming that ‘there will be no prospect for peace in Liberia or the Mano River region as long as [Taylor] remains outside the custody of the international tribunal in Freetown’. Crane elaborates:
If one takes these four recommendations – justice, truth, good governance, and the rule of law – the future of Liberia as a new democracy may be less cloudy and tenuous. To have a sustainable peace in Liberia, you must have truth and justice under the mantle of the rule of law and good governance. It is a simple A+B = C proposition. Truth plus justice equals a sustainable peace. Certainly, with this equation, Congress could be more assured that any funding and political capital expended would not be flushed down the drain.Footnote 56
The former SCSL prosecutor imbricates international criminal accountability with ‘good governance’ and the ‘rule of law’, suggesting that US aid to the region will be unsuccessful without all of these elements of the equation. The problem with such calculations is that donor funding is zero-sum: as some scholars have argued, ‘tribunal funding is simply another form of aid’, and thus ‘tribunals must compete with other assistance categories to obtain resources necessary to apprehend, to try, and to deliver justice’.Footnote 57 How might this shift the character of international criminal accountability if it is reconceived as an ‘assistance category’ competing on a market of development mechanisms?
The Court has adapted to the contemporary international criminal-justice environment by developing its own set of marketing strategies. Faced with perennial budget shortfalls, the SCSL administration has been pulled into fund-raising activities, as Judge Cassese noted in his commissioned report on the SCSL:
For example, the Registrar and Prosecutor have travelled extensively to raise money for the Court. The Court has also convened a pledging conference to generate additional funds. The annual reports of the Special Court are professionally reproduced in a glossy colour pamphlet, suitable for distribution to potential donors. In contrast, the annual reports of the ICTR and ICTY are printed on plain paper and distributed electronically. These fundraising activities are expensive and require additional staffing.Footnote 58
The Special Court's most recent annual report documents the extensive visits made by the prosecutor and registrar to potential donors, a substantial ‘investment’ of limited court resources that are directed towards the possible ‘dividend’ of further donations.Footnote 59 The reports themselves work both as accounts of its progress and as marketing brochures to current and prospective donors, with photographs of prosecutors at outreach events and stiff portraits of the judges in their formal gowns. The reports convey the values of an increasingly market-driven global justice culture, where justice appears as a product that can be managed more or less efficiently, functioning as a wise investment for outsiders who have a stake in the stability of the region.Footnote 60 Yet, the justice market is volatile and donors are often reluctant to invest. A 2009 diplomatic cable noted that the current SCSL registrar's ‘marathon campaign’ to raise funds for the court led to disappointing results ‘due to donor fatigue, the difficult economic situation, and contributions going to other tribunals (e.g., the Special Tribunal for Lebanon (STL) or the Extraordinary Chambers in the Courts of Cambodia)’.Footnote 61 In the brave new world of donors’ justice, tribunal employees double as marketing agents to foreign governments, and funding relies upon the vicissitudes of state interest and the global economy.
4.3. Economies of justice
Many of the Special Court's challenges can be tied to its funding structure, which the UN Secretary-General had warned against from the early stages of the tribunal's foundation.Footnote 62 The two United Nations-backed tribunals for Rwanda and the former Yugoslavia were created through Chapter VII powers of the UN Charter, which allowed them to benefit from compulsory assessed contributions of UN member states. Unlike these tribunals, which were criticized for their expensive operations, the Special Court was designed to be funded directly through voluntary contributions from states rather than through assessed contributions from the UN budget.Footnote 63 Four countries – the United States, the United Kingdom, the Netherlands, and Canada – provided two-thirds of the Court's first-year budget.Footnote 64 Approximately 50 countries in total have contributed to funding Court operations. As previously noted, the United States is the largest donor overall, having contributed over $80 million as of November 2010,Footnote 65 followed by the United Kingdom and the Netherlands.
Some observers have argued that this financing arrangement, which tends to rely heavily on funding provided by a few states, might negatively impact upon perceptions of the Special Court's independence. The International Center of Transitional Justice noted that ‘the budget is tight overall, and these few states theoretically have great influence’.Footnote 66 The Special Court's voluntary funding structure also served as the basis of an early defence challenge to its jurisdiction on the grounds that the patron–client relationship between contributing states and the Court might compromise its judicial independence. The Appeals Chamber's response to this challenge asserts the moral authority of the Court's state donors:
Undoubtedly, states which have contributed to the funds of the Court must have done so because they believe in due process of law and the rule of law. It is far-fetched, preposterous, and, almost, bad taste to suggest that donor states, which in their national practice promote and respect human rights and the rule of law and promote such values internationally, would be committed to funding and sustaining a court in the expectation that it will operate contrary to those same values.Footnote 67
The Appeals Chamber appears to miss the irony of its claim about respecting ‘due process of law and the rule of law’ given that the Court's main donor, the United States, was actively flouting human-rights protections and international humanitarian law in its own ‘war on terror’ when this opinion was issued.
Despite this ethos deficit of the Court's main donor, most observers have noted that the donor-driven funding structure of the SCSL does not appear to affect the Court's independence in practice. The main space of potential state influence appears to be through the Court's Management Committee. Composed of states – Canada, Nigeria, the Netherlands, Sierra Leone, the United Kingdom, and the United States – as well as members of the UN Secretariat,Footnote 68 the Management Committee is empowered to ‘provide advice and policy direction on all non-judicial aspects of the operation of the court, including questions of efficiency’.Footnote 69 In line with its name, which is more reminiscent of a corporate board than of a tribunal oversight body, some commentators have suggested that ‘questions of cost and efficiency’ dominate Management Committee discussions while ‘other important criteria are often neglected’.Footnote 70
In addition to creating the appearance of state influence through donor status, the funding structure makes the Court vulnerable to the vicissitudes of the global market as well as to the changing funding priorities of donor states. A number of observers of the Court's work have noted the ‘immediately apparent weakness’Footnote 71 of using voluntary contributions as a material basis for international criminal justice. Speaking generally, one commentator noted that voluntary contributions ‘are by their nature highly volatile and unreliable. They run fast and easily into donor fatigue’.Footnote 72 A critic of the Special Court's work argued that the financial uncertainty accompanying voluntary contributions ‘infects all of the Special Court's activities’.Footnote 73 A former ICTY judge observed that the SCSL ‘has not been able to overcome entirely the persistent problems of volatile out-of-country financing’.Footnote 74 In his independent expert report on Special Court operations commissioned in 2006, Judge Cassese lists ‘the financial insecurity resulting from funding based on voluntary contributions’ as the first of three reasons why the SCSL has not lived up to its original expectations.Footnote 75 Relying on voluntary contributions rather than on United Nations-assessed contributions creates uncertainty in the Court's budget and financial life: donor states may provide their pledged contributions at the last minute, creating budgetary uncertainty and making it more difficult for the Court to plan its work.Footnote 76
The Court has publicized through its official reports the difficulties it has faced in securing enough funding to complete its mandate.Footnote 77 It had to approach the United Nations for financial assistance in 2004 when it was unable to raise enough money from donors to pay for its operations. In 2009, then-Prosecutor Stephen Rapp explained to the press that it was possible that the judges would have to release Charles Taylor due to the effect of the global economic crisis on Court funding.Footnote 78 In the autumn of 2010, the United Kingdom observed that ‘the current global economic climate poses particular challenges for the three tribunals which rely on voluntary contributions from States’Footnote 79 while urging other donors to continue contributing to the tribunals for Sierra Leone, Cambodia, and Lebanon. The Special Court approached financial insolvency again in 2010 and Court officials appeared before the UN Administrative and Budgetary Committee to make an appeal for a subvention grant to carry the court through to its then-anticipated closure in February of 2012.Footnote 80 The Court was also able to secure last-minute support from some donors, including the United States, which noted the risk of suspending the Taylor trial before a verdict was reached if the Court was unable to obtain more funding.Footnote 81 As of the time of writing, it appears that the Court will be funded through a UN subvention grant until February of 2012, although the United Nations has requested the Court to continue its fundraising activities.
4.4. Insider witnesses and the downside of ‘efficiency’
In addition to the perennial insecurity that accompanies the SCSL's funding structure, some critics have noted that it bears upon court practice. According to Gerhard Anders:
The financial constraints and political pressure to be ‘lean and mean’ as staff in OTP recalled during my fieldwork has had effects on the jurisdiction of the court, the operation of OTP and the conduct of trials heard at the Special Court.Footnote 82
The Court's ‘lean and mean’ structure has particularly affected the number of the individuals brought before it. Charles Jalloh claims that the prosecutor's narrow interpretation of his mandate ‘seemed to have been driven by concerns about the limited funding available to the Court’.Footnote 83 James Cockayne has also argued that the voluntary funding structure limited the numbers of indicted individuals, adding ‘this may be seen as a failure to meet its responsibilities to the international community: by indicting so few, the Special Court has in fact begun to replicate the high cost/conviction ratio seen in the ad hoc tribunals’.Footnote 84
The Court was structured to avoid the perceived shortcomings of the ad hoc tribunals that had preceded it: its restricted ‘greatest-responsibility’ personal jurisdiction would limit indictments to high-level commanders in a bid to increase the efficiency of the proceedings. According to the International Crisis Group, the Court's establishment was shaped in reaction to the view that prior tribunals were ‘overly large, cumbersome and virtually open-ended’: in contrast, the mandate of the Special Court ‘to handle only a limited number of cases is tied directly to the desire of all states that supported its creation to keep it much smaller and less costly’.Footnote 85 The Court's prosecutor indicted only 13 individuals and relied heavily on the testimony of high-level insider witnesses, whose commission of or command responsibility for crimes in the statute could have led to their own indictment under a less restrictive interpretation of the mandate.Footnote 86 Charles Jalloh criticized the ‘extremely small’ number of trials, noting that key actors in the Court's establishment envisioned at least double the number of indictments.Footnote 87 Many high-level commanders who were involved in planning and ordering operations and who were directly implicated in participating in crimes under the SCSL Statute were able to escape legal accountability due to the small number of indictments issued, as domestic criminal trials have been restricted by an amnesty agreement and by lack of political will. Furthermore, the prosecution's desire to pursue complex modes of liability such as ‘joint criminal enterprise’ ensured that these commanders, including some who had threatened to derail the peace process, became valuable sites of knowledge; many were absorbed into the court process as insider witnesses. The pressures of constraining the tribunal's operating costs and restricting the timeline of its proceedings thus produced a kind of impunity gap, where a number of individuals who testified about committing or ordering the commission of serious crimes were relocated or offered assistance from the Court in exchange for their testimony.Footnote 88
If the International Crisis Group is correct in claiming that the Court's limited mandate was a product of the ‘desire of all states that supported its creation’,Footnote 89 there appears to be a constitutive relationship between third-party interests and the resulting institutional design of the SCSL. In the efforts by interested states to pre-empt another slow and expensive tribunal by developing a more ‘streamlined’ model of international criminal justice, impunity for high-level commanders seems to be a tragic and unintended consequence of this desire for increased efficiency. From the perspective of the affected population, it may be difficult to fathom that some high-level combatants effectively profited from their roles in the conflict. This suggests that the interpretation of the Court's mandate may be directed outward to a donor community that regards criminal justice as an efficient ‘investment’ in global security rather than towards an internal population that is attempting to recover from a decade of conflict, as these insiders will either be absorbed back into the Sierra Leonean polity or relocated abroad rather than held accountable for their crimes. On the one hand, this is merely an unintended consequence of the level of evidence required to convict individuals accused of grave international crimes and, in this sense, the phenomenon is not unique to the SCSL. On the other hand, the ratio of high-level insiders to indictees at the Special Court appears to be a product of a restrictive interpretation of the Court's mandate, generated in turn by the donor-driven desire to produce a ‘lean and mean’ judicial mechanism.
5. Conclusion
If you are a donor and are getting assessed for these kinds of tribunals it can be rather disconcerting when you don't see the results you expect to be achieved in a shorter amount of time. Perhaps this will be a more effective and efficient model that can be used in the future. Al White, former Chief of Investigations for the Special Court for Sierra LeoneFootnote 90
The audience of the Special Court for Sierra Leone's extended institutional lesson on the rule of law is at least double. On the one hand, the Court addresses itself to the people of Sierra Leone: the Court was deliberately located in-country, it has an outreach office designed to inform Sierra Leoneans about its work, and it maintains an interest in ‘capacity building’ in the national courts and in Sierra Leonean civil-society groups. On the other hand, the Court appears to tailor even these domestic objectives outward to its second audience, the international donor community, which seeks signs that its ‘investment’ in post-conflict justice is yielding positive dividends, as suggested in the statement from the former Special Court Chief of Investigations above.
What factors correlate with this development in international criminal justice? For one, there is now a professional class of stakeholders in the field: as Thomas Skouteris claims, the ‘agents of the new tribunalism’, who may have ‘professional interest in adopting an optimistic view about the importance of international judicial institution building’.Footnote 91 The relative newness of the field allows for a flexible understanding of what constitutes ‘expert knowledge’ and tribunal professionals may go on to consulting positions in international criminal justice and its related fields of conflict prevention and management. The former Special Court Prosecutor David Crane and former Chief of Investigations Al White started their own consulting firm, CW Group International, delving even further into the ‘business’ of conflict management through acting as consultants for the government of Guinea.Footnote 92 Crane and White were hired to investigate whether international crimes were committed by government troops during a deadly pre-election demonstration in the country's capital. Their resulting report appears to clear the Guinean government of any culpability for international crimes. Unlike a trial chamber, which may retain its independence despite donor-based funding structures, this bilateral consulting relationship raises more serious concerns about partiality.Footnote 93 Among other things, it was a private transaction between two interested parties rather than a public forum of judgment: an extreme case on a continuum of market-driven forms of accountability.
The CW Group consulting example illustrates the emerging triangulation between justice, security, and development. While the scholarly field of international criminal law tends to look inward to its evolving jurisprudence with the occasional turn to political analysis of its structures, the broader relations between tribunals, ‘rule-of-law’ and governance agendas, and the provision of security to foster economic development is rarely considered. These relationships themselves are fluid, subjected to global economic forces and shifting state priorities, and there is no formulaic way of determining their implications for the field and for specific institutions. The important thing is to acknowledge them as the conditions of possibility of international criminal justice in its contemporary forms.
We are far from Hannah Arendt's famous claim that ‘the purpose of a trial is to render justice, and nothing else’, where any other aims would ‘only detract from the law's main purpose: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment’.Footnote 94 While Arendt's restrictive vision of criminal justice may only be possible in theory – post-conflict tribunals are veritable ‘theaters of justice’Footnote 95 in which the autonomy of law is a distant dream – it serves as a marker of how far contemporary ‘donors’ justice’ has drifted from the objectives of retribution and deterrence. Barbara Oomen's warning thus seems particularly prescient and appropriate:
As justice becomes more and more important to the development project, and there is a globalization of the justice sector with its own experts, interests, dynamics, political economy, there is a real danger of losing sight of the original purpose of this industry, and other ways in which to achieve that purpose.Footnote 96
When international justice is commodified, subjected to market pressures and the vicissitudes of foreign-policy priorities, and transformed into an agent of economic development, it becomes more of a means towards unknown ends than an end in itself.
This article has argued that international criminal justice is now described in the neo-liberal language of the market. The shift is both discursive and structural: international criminal justice is discussed in neo-liberal terms that reflect market-driven logics of ‘investments’ and ‘dividends’, and its institutions are established in a new paradigm where third-party donors are responsible for producing the material conditions that enable tribunals to do their work. Although the latter observation more accurately describes the ad hoc tribunals for Sierra Leone, Cambodia, and Lebanon, which are funded through voluntary contributions, than the permanent United Nations-backed International Criminal Court, the former observation is a more broadly applicable product of the late modern tendency to think of all areas of society in economic terms – even the traditionally incalculable social good of justice. While, in principle, an end in itself or a means of deterring future injustices, justice is now figured as an ‘investment’ in other social domains, with unclear implications for judicial institutions and for the societies in which they intervene.
