The Rising Challenge of Funding Victims’ Needs at the International Criminal Court

The International Criminal Court (ICC) includes an engine of relief for the victims of atrocity crimes under investigation and prosecution by the Court: the Trust Fund for Victims (TFV). The Founders of the ICC, and I was one of them, envisaged the TFV in 1998 and empowered judges to award reparations with funding raised by the TFV, under Article 75 of the Rome Statute. Seven years later, the Regulations of the Trust Fund established the assistance mandate aimed at helping victims of atrocity crimes in situations under investigation by the Court. Both remedies—reparations and assistance programs—must not be denied to those who have suffered beyond our imagination.

But today the TFV confronts a highly uncertain future. Significant shortfalls remain in its voluntary fundraising from governments to cover the current and increasing cost of both reparations awards ordered by the judges and the assistance mandate programs. If the TFV continues to experience severe underfunding each year, not only will the surviving victims unjustifiably suffer, but the credibility of the ICC will be undermined, perhaps fatally. A viable, diversified means of raising the funds required by the TFV must be found soon to meet these mounting needs.

Tens of thousands of destitute individuals are registered victims in the cases being adjudicated by the ICC, at this point all in Africa. In fact, tens of millions of victims are in need of assistance in these ravaged countries (including the Democratic Republic of the Congo, Uganda, Central African Republic, Cȏte d’Ivoire and Mali). The ICC’s purpose is not only to hold accountable the perpetrators of these most egregious crimes—genocide, crimes against humanity, war crimes, aggression—but also to provide tangible remedies for human beings who so often are simply trying to survive, overcoming harm in the aftermath of the crimes.

Article 75 of the Rome Statute designates the TFV, which is an independent body guided by a Board of Directors standing apart from the ICC, as a key source of funding for the reparations awards for victims that are ordered by the Court. The dilemma today is that reparation awards (as well as the TFV’s assistance mandate programs for victims) are entirely dependent on voluntary fundraising from governments of States Parties to the Rome Statute. That fundraising remains inadequate as governments are faced with so many humanitarian and other challenges to meet today.

While calculations of cash in the aftermath of atrocity crimes may seem cynical as a remedy, it is a reality and a necessity for the victims. The estimated annual cash requirements of the TFV (reparations and the cost of assistance programs) now stand at about €10 million each year. During the entire existence of the TFV, from 2004 to the present day, only €33.3 million have been raised, often sporadically, from 41 States Parties to the Rome Statute. That averages out to €2.7 million per year.

In 2018, 23 governments voluntarily contributed a total of €3.95 million to the TFV, with the Netherlands, Norway, and Sweden leading the way. In 2016, the total contribution collected was €1.7 million and in 2017, the TFV received €3.03 million. While donor governments deserve praise for their contributions, such amounts are far less than the need dictates and reflect an unpredictable annual result.

There are several outstanding reparations awards that remain partially funded. The December 2017 judgment in Lubanga awarded $10 million in reparations, of which an amount equal to about $3.96 million has been raised so far by the TFV. In the Katanga case, the March 2017 reparations order of a symbolic compensation award of $250 for each of the 297 victims and collective reparations awards for housing assistance, income-generating activities, education aid, and psychological support was fortunately addressed by the TFV with an allocation of $1 million. The Al Mahdi case requires €2.7 million in its reparations order, of which half has been covered by the TFV. The large reparations award anticipated in the Bemba case was extinguished earlier this year by the Appeals Chamber reversal of the Trial Chamber’s guilty verdict. But the TFV still decided to allocate €1 million to an assistance program for the aggrieved victims who were devastated by the Appeals Chamber reversal, as well as for other victims of conflict-related sexual violence in the Central African Republic.

The TFV can be a much-needed bridge and, frankly, gatekeeper for the victims in these situations. In the Lubanga, Katanga and Al Mahdi cases, the TFV is undertaking fundraising efforts to secure the remainder of the funds required under the reparation awards and further assistance programs.

One can expect the Trial Chambers in the Ntganda and Ongwen cases to award substantial reparations arising out of their forthcoming judgments if the respective defendant is found guilty. Indeed, reparations awards have been increasing in their value, in consideration of the significant scale of harm suffered by victims in these cases, and that can be anticipated for future judgments as well. Defendants typically claim indigency, so the burden on the TFV will only mount in the future. How will this be accomplished?

The methodology that guides most of the TFV’s current efforts is to seek more and larger contributions from States Parties sympathetic to the needs of the victims and the Court’s commitment to helping them through reparations and assistance programs. During my six years as the U.N. Secretary-General’s Special Expert on U.N. Assistance to the Khmer Rouge Trials, I learned that the challenge of voluntary fundraising from governments for international justice is daunting and it inspired me to think about more systemic funding options.

The TFV’s fundraising results in 2018 have been relatively impressive compared to the last three years, and represent a 30% increase over 2017. But in two major cases (Lubanga and Al Mahdi) the TFV’s resources still fall far short of what is required by the judges who frame the reparations orders.

The ICC faces other serious challenges: U.S. National Security Adviser John Bolton’s anti-ICC speech on September 10, the African Union’s immunities strategy, too many indicted fugitives evading justice, non-cooperation and tardy assessment payments by many States Parties, and limited territorial jurisdiction globally with 70 or so nations still refusing to ratify the Rome Statute. But the ICC cannot retain its fundamental integrity with voluntary funding chasing the rising total value of reparations orders (as awarded by the judges). This path leads to an inevitable result: major reputational costs and operational burdens on ICC judges and the entire Court. No judge should be influenced by the level of TFV monetary reserves before computing financial remedies on a guilty verdict. A way needs to be found to raise additional funds so that the reparations award in any particular case is not dependent solely on funding from the contributions of one or two well-intentioned donor governments. In the absence of sufficient funding for the reparations awards, the standing and legitimacy of the ICC will be severely degraded because of the vulnerability of judgments that cannot be fully enforced.

This daunting challenge will only be met with innovative initiatives that engage both the public and private sectors and embrace the potential of the ICC to uphold the full scope of justice, including for the victims.

 

Photo credit: ICC Presiding Judge Robert Fremr (C) stands at the courtroom of the International Criminal Court during closing statements in trial of former Congolese warlord Bosco Ntaganda in The Hague, Aug. 28, 2018 (Photo by Bas Czerwinski/AFP/Getty Images) 

About the Author(s)

Ambassador David Scheffer

David Scheffer is the Mayer Brown/Robert A. Helman Professor of Law at Northwestern University Pritzker School of Law and a former U.S. Ambassador at Large for War Crimes Issues.