[848] Financial Regulations
Except as otherwise specifically provided, all financial matters related to the Court and the meetings of the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be governed by this Statute and the Financial Regulations and Rules adopted by the Assembly of States Parties.
General remarks
The financing of the Court was discussed during the negotiations of the Rome Statute. Two broads and different approaches emerged: should the Court be funded by the State Parties or by the United Nations from a special account following the example of peacekeeping operations? Could individuals and private organizations provide additional funding? Even if the main funding would be provided by the State Parties it was discussed whether the United Nations should pay in relation to situations referred to the Court by the UN security council. The scheme agreed is contained in Part 12 of the Statute which provides that funds would include contributions by the States as well as those provided by the United Nations, in particular in relation to the expenses incurred due to referrals by the Security Council.
   The Preparatory Commission for the International Criminal Court prepared Draft Financial Regulations (PCNICC/2001/1/Add.2). The draft used as models both the U.N. financial regulations and the financial regulations of the International Tribunal for the Law of the Sea ("ITLOS"), as proposed by the tribunal, but not yet adopted by the Assembly of States Parties. Since the International Criminal Tribunals for the former Yugoslavia and Rwanda apply the U.N. financial regulations per se they could not provide additional models or precedents. (Witcschel, p. 667). The Financial Regulations were adopted by Assembly of States Parties at its first session in September 2002 (Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002). 

Analysis
The Financial Regulations and Rules are not mentioned in the Rome Statute, not even in Article 21 on applicable law. It may appear unlikely that the Financial Regulations and Rules which concerns administration may come in conflict with the substantive law of the Statute, however in case of conflict the Statute should argyably prevail (Schabas, p. 1138).
   The Registrar has the primary responsibility for managing the Court's finances (regulation 1.4, rule 101(1)(b)).

Doctrine:

1. S. Rama Rao, "Financing of the Court, Assembly of States Parties and the Preparatory Commission", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 399-420. 
2. S. Rama Rao, "Article 112 - Assembly of States Parties", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1699-1701. 
3. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1137-1140.
4. Georg Witcschel, "Financial Regulations and Rules of the Court", Fordham International Law Journal, vol. 25, no. 3, 2001, pp. 665-673.

Author: Mark Klamberg

Updated: 30 June 2016

[849] Payment of expenses
Expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be paid from the funds of the Court.
This provision provides that the expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, shall be paid from the funds of the Court. Article 114 is attempt to avoid a practice as set out in the United Natons Convention on the Law of the Sea where the Secretary General pays for the meetings of States Parties and other bodies out of the UN general budget (Arsanjni, p. 324, Schabas, p. 1142)
   The term "funds" in Article 114 should be distinguished from the same term used in Article 79, the later provision concerns the Trust fund for the benefit of the victims. 

Doctrine:

1. Mahmoush H. Arsanjani, "Financing", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 315-329
2. S. Rama Rao, "Financing of the Court, Assembly of States Parties and the Preparatory Commission", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 399-420. 
3. S. Rama Rao, "Article 114 - Payment of Expenses", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, p. 1703. 
4. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1141-1143.

Author: Mark Klamberg

Updated: 30 June 2016

[850] Funds of the Court and of the Assembly of States Parties 
The expenses of the Court and the Assembly of States Parties, including its Bureau and subsidiary bodies, as provided for in the budget decided by the Assembly of States Parties, shall be provided by the following sources:
(a) Assessed contributions made by States Parties;
(b) Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council.
General remarks
Article 115 complements what has been set forth in Article, 115, namely that the Court has two sources of financing: assessed contributions made by States Parties and funds provided by the United Nations. As noted in the comment on Article 113 this is a comprise between the two main approaches set against each other during the negotiations of the Rome Statute: whether the Court should be funded by the State Parties or by the United Nations from a special account. Article 115 also confirms that the Assembly of States Parties is the budgetary authority. Pursuant to rule 90 of the Rules of Procedure of the Assembly of States Parties the Assembly "shall decide on the budget, which shall comprise the expenses of the Court and the Assembly, including its Bureau and subsidiary bodies".

Analysis
This provision does not exclude other sources of income such as fines, reimbursement for services rendered, bank interest and rental of premises. However, the word "funds" used in Articles 114 and 115 relate to revenues which are used for approved expenses creating a "closed system" (Halff/Tolbert, p. 1705-1706). This should be distinguished from voluntary contributions which are regulated in Article 116.
   Article 115(a) provides that the primary source of income are assessed contributions made by States Parties which are regulated in more detail in Article 117.
   Article 115(b) implies that there are situations in which the UN should contribute to the Court's funds. This is particularly motivated in relation to Security Council referrals which may be considered as services rendered by the Court to the UN. However, the two referrals by the Security Council to the Court have explicitly excluded that possibility. Resolution 1593 referring the Situation in Darfur, Sudan to the Court "[r]ecognizes that none of the expenses incurred in connection with the referral including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily (para. 7)". The Court has accepted the referrals without objection or condition, and has not made financial demands on the United Nations (Schabas, p. 1147). Resolution 1970 on the Situation in Libya contains an identical provision (para. 8) ruling out provision of funds by the United Nations to the Court.

Doctrine:

1. Mahmoush H. Arsanjani, "Financing", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 315-329.
2. S. Rama Rao, "Financing of the Court, Assembly of States Parties and the Preparatory Commission", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 399-420. 
3. Maarten Halff/David Tolbert, "Article 115 - Funds of the Court and of the Assembly of States Parties", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München, Oxford/Baden-Baden, 2008, pp. 1705-1713. 
4. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1144-1148.

Author: Mark Klamberg

Updated: 30 June 2016

[851] Voluntary contributions
Without prejudice to Article 115, the Court may receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities, in accordance with relevant criteria adopted by the Assembly of States Parties.
General remarks
It is common practice that international organizations accept voluntary contributions. Such contributions may distort the priorities of an organisation, provide wealthier and more powerful states an advantage which may come in conflict with the ideal of an independent court. In addition to the funds listed in Articles 115 and 116 provides that the Court may receive and utilize, as additional funds, voluntary contributions from Governments, international organizations, individuals, corporations and other entities.

Analysis
Considering that voluntary contributions are not covered by Article 115 they are not "funds of the Court and of the Assembly of States Parties" within the meaning of Article 115. Whileas Articles 14 and 115 sets up a "closed system" with approved funds and approved expenses, voluntary contributions do not form part of the same calculus.
   Regulation 7.2 of ICC Financial regulations and Rules provides that "[v]oluntary contributions, gifts and donations, whether or not in cash, may only be accepted by the Registrar, provided that they are consistent with the nature and functions of the Court and the criteria to be adopted by the Assembly of States Parties on the subject, in accordance with Article 116 of the Rome Statute. Acceptance of contributions which directly or indirectly involve additional financial liability for the Court shall require the prior consent of the Assembly of States Parties".
    When donors specify purposes for which the voluntary contributions are to be used, it follows that when the Court's accepts such contributions shall be treated as trust funds or special accounts (regulation 7.3). When no purpose is specified for a voluntary contributions such contributions shall be treated as miscellaneous income and reported as “gifts” in the accounts of the financial period (regulation 7.4).

Doctrine:

1. Mahmoush H. Arsanjani, "Financing", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 315-329.
2. S. Rama Rao, "Financing of the Court, Assembly of States Parties and the Preparatory Commission", in Roy S. Lee, (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 399-420.
3. Maarten Halff/David Tolbert, "Article 115 - Funds of the Court and of the Assembly of State Parties", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1715-1718.
4. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1149-1151.

Author: Mark Klamberg

Updated: 30 June 2016

[852] Assessment of contributions
The contributions of States Parties shall be assessed in accordance with an agreed scale of assessment, based on the scale adopted by the United Nations for its regular budget and adjusted in accordance with the principles on which that scale is based.
General remarks
As noted in the comment on Article 115(a), assessed contributions by States Parties is one of two sources of funds for the Court. Article 117 concerns how the burden of funding for this source is to be distributed between the States Parties. It acknowledges the principle of differential assessment, using the United Nations scale of assessments (Article 17 of the UN Charter, Woeste and Thomma, pp. 597-605).

Analysis
The Rome Statute does not specifiy which body has the authority to adopt and adjust the scale of assessments. However, ICC RPE rule 91 and ICC Financial regulations and Rules, regulation 5.2 provides that the scale shall be adopted by the Assembly of States Parties.
   Regulation 5.2 further specifies that the "scale shall be based on the scale adopted by the United Nations for its regular budget, and adjusted in accordance with the principles on which that scale is based, in order to take into account the differences in membership between the United Nations and the Court". The UN scale of assessments is based on a complex formula which takes into account the population of the country and its gross national income (GNI) and political adjustments (Woeste and Thomma, p. 597). Considering that not all UN member states are parties to the Rome Statute, the UN scale of assessments cannot be applied directly to the Court. Thus, Article 117 and regulation 5.2 provides for an adjustment following the same principles.

Doctrine:

1. Mahmoush H. Arsanjani, "Financing", in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 315-329.
2. S. Rama Rao, "Financing of the Court, Assembly of States Parties and the Preparatory Commission", in Roy S. Lee (Ed.), The International Criminal Court: The Making of the Rome Statute, Kluwer Law International, The Hague, 1999, pp. 399-420.
3. Maarten Halff/David Tolbert, "Article 115 - Funds of the Court and of the Assembly of State Parties", in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court - Observers' Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 1719-1722.
4. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010, pp. 1152-1154.
5. Peter Woeste/Thomas Thomma, "Article 17", in Bruno Simma et al. (Eds.), The Charter of the United Nations - A Commentary, Third Edition, Oxford University Press, 2012, pp. 576-620.

Author: Mark Klamberg

Updated: 30 June 2016