Bipartisan efforts are underway in Congress to provide some funding for the International Criminal Court in the wake of its prosecutor’s investigation into Russia war crimes in Ukraine. But a key question is how the legislative vehicle should be designed, especially in light of existing laws that block federal appropriations for the Court. Should Congress provide funds only for the Ukraine investigation or for the Court more generally?
On March 7, the Prosecutor issued a call (in a Note Verbale) asking states for financial assistance. Were the United States to provide needed funding, it would join at least 20 other countries, including NATO and other allies, that have answered that call. But the United States apparently won’t be able to join this group if Congress or the Executive Branch tries to earmark the funds specifically for the Ukraine investigation.
Late last month, Karim A.A. Khan QC stated, “We will not earmark for Ukraine. I can’t accept that.” Instead, Khan has explained that “the funds received will be deployed based on my assessment of needs across all situations,” and he has identified three priorities:
“Use of new advanced technological tools and equipment in the collection, analysis and processing of evidence;
Provision of enhanced psycho-social support to witness and survivors, as well as broader additional witness protection and support measures;
Enhancement of dedicated and specialised capacity with respect to investigations into crimes of sexual and gender-based violence and crimes against children.”
Professor Rebecca Hamilton who previously served as a lawyer in the Office of the Prosecutor said in an email, “The ICC is rightly taking the position that states cannot support its work on an à la carte basis.”
Todd Buchwald, who served as the U.S. Ambassador for Global Criminal Justice, also said by email:
“From the ICC’s perspective, earmarked funding can create at least the perception that the justice that ensues was not arrived at impartially. The Court has much at stake in being seen as making decisions without fear or favor, based solely on the law and the evidence, and it wants to avoid feeding any accusations of having bent to the political priorities of particular patrons in the selection of cases that it eventually decides to pursue.”
The prosecutor’s office was already in need of funds before Russia launched its invasion in February. “The [September 2020] report of the Independent Expert Review initiated by the Assembly of State Parties of the International Criminal Court identified staffing and resources as a key internal challenge for the Office,” Khan told the U.N. Security Council.
The Office of the Prosecutor is not the only division of the ICC needing an injection of funds. The Registry will also face greater demands as the prosecutor’s activities ramp up.
Even before Russia’s invasion this past February, the ICC Registrar Peter Lewis already expected an unusually busy year for his office. “Now looking forward to the year ahead, our twentieth anniversary year, we have many challenges to meet. Our present workload … means we are going to be very busy in the Court for all of 2022,” Lewis said during the formal opening of the court in January. He then cataloged a list of stresses on the system including five cases at trial stage, an unprecedented scale of victim participation in some of those cases, and unprecedented reparations work with the Court’s trust fund.
Meanwhile the investigation of widespread Russian war crimes is resource intensive and getting even more so. Last week, Khan deployed a team of 42 investigators, forensic experts, and support personnel to Ukraine, the largest single field deployment by the Office of the Prosecutor in its history.
The offices of the prosecutor and registry will also face increased cybersecurity costs since the prosecutor is now pursuing actors with sophisticated hacking capabilities and a criminal record of using them against international organizations. In March, Khan established a portal for anyone to submit evidence of war crimes in Ukraine. “The security of the new portals is something that has to be monitored and enhanced all the time,” said Kateryna Busol, an associate at Chatham House who is an expert on the ICC and Ukraine.
States leading the way in making financial contributions to the ICC include the United Kingdom (March 24 statement of an “additional” 1 million GBP), Germany (April 4 and 11statements of an “additional” 1 million EUR), the Netherlands (April 11 statement of “an extra Dutch contribution” of 1 million EUR), and Ireland (April 14 announcement of 3 million EUR including 1 million EUR “dispersed immediately”).
Current federal law allows the Biden administration to support the ICC in a variety of meaningful ways including intelligence sharing and detailing U.S. personnel. The Justice Department’s Office of Legal Counsel outlined those available options in an opinion in 2010. But the potential for contributing funds to the Court’s work in general is not unfettered.
The combination of three laws constrain, if not outright prohibit, such contributions. The three laws are:
1. American Servicemembers’ Protection Act of 2002 (APSA) (including the Dodd Amendment)
2. FY2000–01 Foreign Relations Authorizations Act (FRAA), § 705(b)
3. Consolidated Appropriations Act of 2022, § 7049(b)
The third has not received as much attention, and its terse three sentences pose a legal thicket for the United States to provide funds to the ICC. David J. Scheffer, Senior Fellow of the Council on Foreign Relations and former U.S. Ambassador at Large for War Crimes Issues, said in an email:
“Recent consolidated appropriations acts authorize funding the International Criminal Court for purposes of technical assistance, training, assistance for victims, protection of witnesses, and law enforcement support related to international investigations, apprehensions, prosecutions, and adjudications of atrocity crimes. But such assistance cannot be used for the Court’s scrutiny of any Americans or nationals of NATO countries or major non-NATO countries. This weighs against any unearmarked funding by the US. But a new federal law explicitly earmarking funds for a specific situation before the ICC, like Ukraine, with whatever caveats Congress requires, could be legislated. The issue is whether the Court would accept such earmarked funds, and that is very problematic as a political matter for the Court. However, there appears to be no legal prohibition to detailing U.S. personnel to the ICC for work on cases involving only foreign nationals, and those cases can range far beyond the Ukraine situation.”
With the ICC prosecutor’s strict adherence to a policy against earmarked funds, Congress has a choice to make. To be effective, new legislation would need to remove current barriers posed by the three statutes and steer clear of earmarking for Ukraine. The United States could then join its allies who have answered the ICC’s call for financial assistance in a manner that helps the Court carry out its most important work and maintain greater impartiality.
Photo credit: U.S. Secretary of State Anthony Blinken (L) talks to Appropriations Committee Chairman Patrick Leahy (D-VT) (C) and Appropriations Committee Vice Chairman Sen. Richard Shelby (R-AL) as he arrives to testify during a Senate Appropriations subcommittee hearing on the Department of State budget request on June 8, 2021 (Kevin Dietsch/Getty Images)
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