The Costs of International Justice

David Wippman

doi:10.1017/S0002930000031936

1 ICTY at a Glance (Aug. 10 & Sept. 13, 2006), at <http://www.un.org/icty/glance-e/index.htm. ICTY documents cited in this Note are available online at the Tribunal’s Web site, <http://www.un.org/icty.

2 ICTR, About the Tribunal (n.d.), at <http://www.ictr.org.

3 The regular budget of the United Nations for 2006 was approximately $1,755 billion; on average, the regular budget runs to about $1.9 billion, although total UN spending is closer to $ 15 billion, taking into account spending on peacekeeping operations, the programs and funds, and specialized agencies. Questions and Answers About the United Nations, ch. 5 (Mar. 2006), at <http://www.un.org/geninfo/ir/index.asp.

4 ICTY at a Glance, supra note 1. Actual spending is somewhat less, as not all moneys allocated are expended.

5 ld.

6 Ralph, Zacklin, The Failings of Ad Hoc International Tribunals, 2 J. Int’l Crim. Just. 541, 543 (2004).Google Scholar

7 Id.

8 Dominic, Raab, Evaluating the ICTY and Its Completion Strategy—Efforts to Achieve Accountability for War Crimes and Their Tribunals, 3 J. Int’l Crim. Just. 82, 96 (2005).Google Scholar The hiring freeze was lifted in January 2005, but pressures to control costs remained strong.

9 Amnesty International, Amnesty International’s Concerns on the Implementation of The “Completion Strategy” of the International Criminal Tribunal for the Former Yugoslavia 3 (AI Index EUR 05/001/2005, June 2005), available at <http://web.amnesty.org/library/index/engeur050012005, which stated:

The Tribunal’s “completion strategy” appears to be mostly dictated by financial constraints influenced by a changing geopolitical setting, where countries of the former Yugoslavia have become less of a priority in the international scene, and based on the assumption that local courts in former Yugoslav countries would be able to perform the Tribunal’s tasks at a lower cost.

10 Raab, supra note 8, at 88.

11 Dividing the ICTY budget by the number of trials concluded produces a figure of some $ 18 million per trial, but that figure omits the costs of proceedings related to individuals indicted but not tried and the costs related to cases now in progress.

12 See Kevin, Flynn, BombingCase Cost $82.5 Million, Rocky Mtn. News (Denver), Nov. 3, 1998, at 4A, available in LEXIS, News Library, Major Newspapers FileGoogle Scholar; Howard, Pankratz, Bomb Trials Cost $82.5Million, Denv. Post Online, Nov. 3, 1998, at <http://extras.denverpost.com/bomb/bombl103.htm Google Scholar.

13 For simplicity, the analysis here focuses on the ICTY, the longest-running and most productive of contemporary international criminal tribunals, rather than on the ICTR or other tribunals.

14 Karen, Abbott & Lynn, Bartels, Teacher Rips Bomb Trial as Too Costly, Rocky Mtn. News, Oct. 17, 1997, at 22A.Google Scholar

15 The Administrative Office describes the budget process for the federal courts as follows:

The Administrative Office, in consultation with the courts and with various Judicial Conference committees, prepares a proposed budget for the judiciary for each fiscal year. The proposal is reviewed and approved by the Judicial Conference and is submitted to the Congress with detailed justifications. . . .

After Congress enacts a budget for the judiciary, the Judicial Conference approves a plan to spend the money, and the Administrative Office distributes funds directly to each court, operating unit, and program in the judiciary. Individual courts have considerable authority and flexibility to conduct their work, establish budget priorities, make sound business decisions, hire staff, and make purchases, consistent with Judicial Conference policies.

Administrative Office of the United States Courts [AO], Understanding The Federal Courts, Federal Judicial Administration (n.d.), at <http://www.uscourts.gov/understand02/content_7_0.html.

16 The most comprehensive state study examines the cost of murder cases in North Carolina. Philip, J. Cook & Donna, B. Slawson, The Costs of Processing Murder Cases in North Carolina (1993) (with Lori, A. Gries), available at <http://www.pubpol.duke.edu/people/faculty/cook/comnc.pdf Google Scholar. This 1993 study finds that the average non-death-penalty murder trial costs $17,000, the average capital trial ending with the guilt phase costs $57,000, and the average bifurcated capital trial (that is, the average capital trial including both the guilt and sentencing phases) costs $84,000. Id. at 47. A 2002 Indiana study finds that the average cost of the death penalty phase (from filing of charges to sentencing) is $63,095 for a life-without-parole murder case, and $272,975 for a death penalty case, excluding most prosecuting attorney and court personnel costs. Goodpaster, M., Cost Comparison Between a Death Penalty Case and a Case Where the Charge and Conviction Is Life Without Parole, in The Application of Indiana’s Capital Sentencing Law: Findings of the Indiana Criminal Law Study Commission 122A, 122F (2002), available at <http://www.in.gov/cji/special-initiatives/law_book.pdf Google Scholar [hereinafter Indiana Report]. A 2003 Kansas study finds that the median cost of a noncapital murder trial (excluding overhead costs such as space) is $32,000, and that the median cost of a capital trial ending in the death sentence is $508,000. Costs Incurred for Death Penalty Cases, A K-Goal Audit of the Department of Corrections 13 (Dec. 2003), at <http://www.kslegislature.org/postaudit/audits_perform/04pa03a.pdf [hereinafter K-GOAL Audit]. A 2004 Tennessee study yields an average life-with-parole murder trial cost of $31,622, and an average bifurcated capital trial cost of $46,791. Emily, Wilson, Brian, Doss, & Sonya, Phillips, Tennessee’s Death Penalty: Costs and Consequences 16 (July 2004), at <http://www.comptroller.state.tn.us/orea/reports/deathpenalty.pdf.Google Scholar Most of the cases considered take much less time to try than ICTY cases. For example, in Kansas, the average non-death-penalty trial lasted nine days; the average death penalty trial lasted twenty-eight days. K-GOAL Audit, supra, at 15.

17 AO, Daily Cost of a Criminal Jury Trial—FY 2002 (Apr. 16, 2002) [hereinafter AO Estimate].

18 Id. This number seems to understate benefits, since the annual salary of a federal district court judge in 2002 was $150,000.

19 The 2001 ICTY cost figures cited in this paragraph come from the resource requirements for 2001 in Report of the Secretary-General, Financing of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, UN Doc. A/55/517 (2000) [hereinafter 2001 Report], available at <http://www.un.org/documents/ga/docs/55/a55517.pdf.

20 This figure may overstate the recurring annual cost, since installation and relocation expenses (over half of the common cost amount) presumably are not incurred annually. U.S. district court judges, who live in the general vicinity of their courts, generally do not incur home leave travel or relocation expenses, which together account for over two-thirds of the common costs for ICTY judges.

21 The use of an assumed eight-hour day is for comparison purposes only. In fact, trials rarely occupy a full eight hours per day in either system. Critics of the ICTY often complain that the judges work fewer hours than in the United States or elsewhere, but neither U.S. nor ICTY judges record their hours. ICTY judges do take two three week recesses each year, and are entitled to another two weeks when they may take vacation.

22 See note 20 supra.

23 David, Pimentel, chief, court management, ICTY, e-mail to author (Mar. 12, 2005).Google Scholar

24 2001 REPORT, supra note 19, Annex IX, para. 11, at 104. UN professional staff salaries “are set by reference to the highest-paying national civil service.” Office of Human Resources Management, United Nations, Salaries & Post Adjustment (2005), at <http://www.un.org/Depts/OHRM/salaries_allowances/salary.htm. As a pracrical matter, that means salaries are pegged to U.S. civil service salaries, since the “federal civil service of the United States of America has to date been taken as the highest paid national civil service.” Id. In addition, salaries are subject to a post adjustment multiplier, to compensate for the difference in living costs between New York City (the United Nations base) and the relevant post. Id.

25 Pimentel, supra note 23.

26 AO Estimate, supra note 17, n.2.

27 Staff of Administrative Office of the Federal Courts, e-mail to author (Feb. 2, 2005).

28 Pimentel, supra note 23.

29 Cook & Siawson, supra note 16, at 37.

30 Where the Money Goes: A Look at How the Judiciary’s FY2005 Budget Is Divided, Third Branch at 1 (AO, Washington, D.C., Feb. 2005), Washington , D.C., Feb. 2005), available at <http://www.uscourts.gov/budget_2005.htm. The judiciary budget cannot be compared directly to the ICTY budget, since the two budgets include different categories of costs.

31 As discussed below, these offices perform functions beyond those performed by U.S. Attorneys’ offices and clerks’ offices in the United States.

32 In 1995 the Department of Justice “reported an average total cost per prosecution [in death penalty cases] of $365,296, but this figure does not include the cost of investigation or the cost of scientific testing and expert evaluations performed by law enforcement personnel.” Subcommittee on Federal Death Penalty Cases, Committee on Defender Services, Judicial Conference of the United States, Federal Death Penalty Cases: Recommendations Concerning the Cost and Quality of Defense Representation, pt. I §B(5) (May 1998), available at <http://www.uscourts.gov/dpenalty/lCOVER.htm [hereinafter Federal Death Penalty Cases]. Some of the state court studies also provide per-trial or per-case breakdowns of some prosecution and defense costs, but these costs are based on estimates prepared by surveying prosecution and defense attorneys, vary significantly by case type (capital or non-capital), and are associated with trials of relatively brief duration. For example, a Tennessee study showed average capital case prosecution trial costs of $11,427 and average life-with-parole case prosecution trial costs of $8,923. See Wilson,Doss, & Phillips, supra note 16, at 16. These costs cannot be readily correlated with ICTY cost data, which are not broken out by case.

33 Stephen, Jones & Peter, Israel, Others Unknown: the Oklahoma City Bombing Case and Conspiracy 112 (1998).Google Scholar

34 See Oklahoma Bombing Chronology, Washington Post.Com, 1998, at <http://www.washingtonpost.com/wp-srv/national/longterm/oklahoma/stories/chron.htm.

35 Pankratz, supra note 12.

36 Id.

37 Estimates on the extent to which death penalty cases are more expensive vary considerably. According to the Kansas study, “Cases in which the death penalty was sought and imposed cost about 70% more than cases in which the death penalty wasn’t sought.” K-GOAL AUDIT, supra note 16, at ii. The Tennessee study suggests that death penalty murder trials are roughly 50 percent more expensive than non-death-penalty murder trials. Wilson, Doss, & Phillips, supra note 16, at ii. The Indiana study indicates that death penalty cases are about four times as expensive as non-death-penalty cases during the trial phase. K. Janeway (Reporter), Indiana Report, supra note 16, at 119. In the federal courts, one 1998 study suggests that the costs of representation in death penalty cases are about four times greater than in non-death-penalry cases. See Federal Death Penalty Cases, supra note 32, Executive Summary.

38 See, e.g., Federal Death Penalty Cases, supra note 32; K-GOAL Audit, supra note 16, at 14–15 ; Janeway, supra note 37, at 11–15.

39 Federal Death Penalty Cases, supra note 32, pt. I §B(2) (footnote omitted).

40 Id.

41 2001 Report, supra note 19, Annex II, para. 13.

42 ICTY Budget for the Biennium 2004-2005, UN Doc. A/58/226, tbl. 2, at 7 (2003).

43 7 AO, Office of Defender Services Training Branch, Guidelines for the Administration of the Criminal Justice Act (18 U.S.C. 3006A), ch. 2, pt. C §2.22 (2005), availaUe at <http://www.fd.otglPublications/GenRef/Vol7/Volume_7/Section_A/Chapter_2.html#ptc> [hereinafter Guidelines].

44 Id.

45 Guidelines, supra note 43, ch. 6 §6.02, available at <http://www.fd.org/Publications/GenRef/Vol7/Volume_7/Section_A/Chapter_6.html#6.02.

46 Jones & Israel, supra note 33, at 42–43.

47 Federal Death Penalty Cases, supra note 32, Executive Summary.

48 Id., pt. I §B(2).

49 McVeigh’s Defense Tab Tops $13-Million, St. Petersburg Times (Fla.), June 30, 2001, at 4A, available in LEXIS, News Library, Major Newspapers File.

50 Carrie, Johnson, After the Enron Trial, Defense Firm Is Stuck with the Tab, Wash. Post, June 16, 2006, at D1.Google Scholar Skilling’s private counsel billed as much as $850 per hour.

51 See Sylvia de, Bertodano, What Price Defence? Resourcing the Defence at the ICTY, 2 J. Int’l Crim. Just. 503, 504 (2004).Google Scholar

52 Id. at 503.

53 ICTY, Directive on the Assignment of Defense Counsel, UN Doc. IT/73/Rev.lO, Art. 25, as amended July 28, 2004, available at <http://www.un.org/icty.

54 Id., Annex I. Lead counsel with fewer than twenty years’ experience received less than $110 per hour, down to a minimum of $80 per hour for those with nine or fewer years’ experience. Co-counsel received $80 per hour.

55 See ICTY, Directive on Defence Counsel—Pre-trial Legal Aid Policy (May 1, 2006).

56 Id. .§A(3).

57 De Bertodano, supra note 51, at 507.

58 ICTY, Directive on Defence Counsel—Trial Legal Aid Policy, para. 20 (May 1, 2006).

59 AO, 2001 Judicial Business, U.S. District Courts—Length of Civil and Criminal Trials Completed, by District, During the 12-Month Period Ending September 30, 2001, tbl. C- 8, available at <http://www.uscourts.gov/judbus2001/appendices/c08sep01.pdf.

60 Id.

61 U.S. Dep’t of Justice, Bureau of Labor statistics, Sourcebook of Criminal Justice Statistics Online, Length of Civil and Criminal Trials Completed in U.S. District Courts, tbl. 5.42, at 445 (31st ed. 2003), available at <http://www.albany.edu/sourcebook/pdf/t542.pdf [hereinafter Sourcebook].

62 Dan, Ackman, Quattrone Fought Long Odds, and Lost, Forbes.Com, Sept. 9, 2004, at <http://www.forbes.com/home/business/2004/09/09/cx_da_0909topnews.html Google Scholar (citing AO statistics).

63 Sourcebook, supra note 61, tbl. 5.10, available at <http://www.albany.edu/sourcebook/pdf/t5102004.pdf.

64 Claude Jorda, Report on the Operation of the International Tribunal for the Former Yugoslavia, UN Doc. A/55/382—S/2000/865, Annex I, at 9. Figures on trial lengths, however, have to be viewed with some caution. The ICTY prosecutor argues that

the true measure of the duration of a trial was not the time period over which the trial extended, but rather the actual number of days of trial, excluding periods when courtrooms or judges were unavailable for various reasons and excluding trial suspensions owing to interlocutory appeals, the need to deal with motions, illness or unavailability of attorneys or other necessary parties, etc.

Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, UN Doc. A/54/634, para. 171 (1999) [hereinafter Expert Group Report]. The prosecutor goes on to argue that “by comparison with comparable complex civil or criminal litigation in national courts, there were not likely to be dramatic differences between the actual length of trials before the Tribunal and those in national courts.” Id.

65 Jorda, supra note 64, at 9.

66 Raab, supra note 8, at 89.

67 Id.

68 For a discussion of some of the specific measures adopted, see Assessment and Report of Judge Fausto Pocar, UN Doc. S/2006/353, Annex I (2006).

69 ICC Office of the Prosecutor, Informal Expert Paper, Measures Available to the International Criminal Court to Reduce the Length of Proceedings, para. 8 (2003), available at <http://vvTvw.icc-cpi.int/library/organs/otp/length_of_proceedings.pdf.

70 Directive on Defence Counsel, supra note 58, para. 23.

71 Id., para. 19.

72 Report of the Secretary-General, Budget for the International Tribunal for the Former Yugoslavia for the Biennium 2006–2007, UN Doc. A/60/264, para. 49 (2005).

73 Expert Group Report, supra note 64, para. 166.

74 Id., para. 65; see also Pocar, supra note 68, at 9, para. 28 (“The philosophy behind the Prosecution’s pleading practices is its obligation to victims.”).

75 See Raab, supra note 8, at 90. Indeed, the ICTY judges themselves have “decided to address the problem of lengthy and complex indictments” from a concern for the right of all accused to be tried without undue delay. Pocar, supra note 68, at 10.

76 Cf. Federal Death Penalty Cases, supra note 30, pt. I §B(4)(b) (noting with reference to recently enacted death penalty laws that “newer statutes tend to produce more constitutional and interpretive issues than statutes that have already been the subject of extensive appellate and Supreme Court consideration”).

77 2001 Report, supra note 19, para. 30.

78 Id., Annex II, para. 29.

79 Expert Group Report, supra note 64, para. 133.

80 As an example, the United States deployed five hundred FBI agents to East Africa following the embassy bombings there. According to then-FBI director Louis Freeh:

Over the course of the eight-weeks immediately following the bombings, the FBI:

•logged 61 flight missions, of which 16 were transoceanic;
•transported over 1,000 agents, technicians, examiners, and other employees deployed to and from East Africa;
•moved 295 tons of equipment, supplies, and related items to support our investigative teams.

Statement for the Record of Louis J. Freeh, Director, FBI, Before the Senate Comm. on Appropriations, Subcomm. for the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies (Feb. 4, 1999), available at <http://www.fas.org/irp/congress/1999_hr/990204-freehct2.htm.

81 Raab, supra note 8, at 92.

82 Mark, B. Harmon & Fergal, Gaynor, Prosecuting Massive Crimes with Primitive Tools: Three Difficulties Encountered by Prosecutors in International Criminal Proceedings, 2 J. Int’l Crim. Just. 403, 411 (2004).Google Scholar

83 Id.

84 Pimentel, supra note 23.

85 Expert Group Report, supra note 64, para. 179.

86 Id., para. 37.

87 2001 Report, supra note 19, para. 51, at 32.

88 W., para. 54, at 39.

89 Id., para. 51, at 32.

90 Antonio, Cassese, The ICTY: A Living and Vital Reality, 2 J Int’l Crim. Just. 585, 585 (2004).Google Scholar

91 Kelly, D. Askin, Reflections on Some of the Most Significant Achievements of the ICTY, 37 New Eng. L. Rev. 903, 907 (2003).Google Scholar

92 Id.

93 Patricia, M. Wald, ICTY judicial Proceedings—An Appraisal from Within, 2 J. Int’l Crim. Just. 466, 466 (2004).Google Scholar

94 Minna, Schrag, Lessons Learned from ICTY Experience, 2 J. Int’l Crim. Just. 427, 432 (2004)Google Scholar (footnote omitted).

95 Id.

96 In Barayagwiza v. Prosecutor, Decision, No. ICTR–97–19–AR72, paras. 101, 106 (Nov. 3, 1999), available at <http://www.ictr.org, the Tribunal terminated proceedings against Barayagwiza for abuse of process by the Office of the Prosecutor. Following a public outcry, however, that decision was reversed. Id. (Prosecutor’s Request for Review or Reconsideration) (Mar. 31, 2000).

97 See David, Tolbert, The ICTY and Defense Counsel: A Troubled Relationship, 37 New Eng. L. Rev. 975, 975 (2003).Google Scholar

98 Id. at 977, 979.

99 Wald, supra note 93, at 473.

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