The many atrocities being committed in the wake of Russia’s invasion of Ukraine have prompted calls for perpetrators to be held accountable internationally. Heralded as a critical player in these accountability efforts is the International Criminal Court (the ICC). To support the Court in bringing Russian perpetrators to justice, some States are backing their words with actions and generously donating funding and other resources to the Court.
The unique situation surrounding State support for the ICC following the Russian invasion provides a legitimacy opportunity for the Court and for States that believe in its mission. This article argues that States supportive of the ICC’s mission should commit to increasing and sustaining their support for the ICC—as they have done in the wake of Russia’s aggression—so that the ICC can fully assert itself as a key global accountability mechanism. This would in turn lead to enhanced perceived legitimacy for the Court.
International institutions can be legitimate both objectively and subjectively. Objective legitimacy refers to the institution’s ability to conform to normative positive performance criteria. Subjective legitimacy “refers to the perception of relevant audiences that an institution or decision is justified and deserves support independent of any sanction or reward associated with such support.” We focus only on subjective, or perceived, legitimacy—specifically as regards how States view the ICC, because unless the States funding the Court perceive it as legitimate, the Court may cease to exist.
Although convictions are not the only measure of success for any court, perceptions of those who fund the Court are heavily influenced by the ICC’s results in terms of convictions. The evidence suggests, however, that the Court is not living up to the expectations of this audience. Over its 20 years of existence, the Court has only handed down ten convictions. No doubt there are areas where the ICC can improve the way it handles cases, and thereby improve its conviction rate. We argue, however, that a primary reason that the ICC may have failed to deliver previously is because States did not provide it with sufficient resources and cooperation. The uptick in international support for the Court following Russia’s invasion provides a rare opportunity to remedy these longstanding resource gaps.
Before the Invasion
Historically, the evidence indicates that States have not always or fully supported the Court in terms of funding or cooperation. First, the ICC’s budget is relatively small given its mandate to act as the court of last resort to end impunity around the globe. In fact, the ICC’s funding for atrocity investigations pales in comparison to the resources States have devoted to domestic mass atrocity investigations—for example, of the Lockerbie plane bombing, the Oklahoma City bombing, and the London train bombings. At peak size, domestic prosecutions of such high-profile crimes have investigation teams with between 100 and 10,000 personnel who often conduct thousands of witness interviews. By contrast, despite pursuing cases that may be far more complicated to prove, the ICC Office of the Prosecutor’s (OTP) average investigation team has about 35 personnel and conducts fewer than 200 witness interviews. In addition, the OTP’s annual budget is comparable to that of the previous ad hoc international tribunals in Rwanda and the former Yugoslavia—both of which were focused on only one situation in one geographic location. ICC Judge Chile Eboe-Osuji makes another comparison, noting that the world’s $1.7 trillion “annual military spending is roughly ten thousand times larger than the budget of the ICC.” Over the past decade, the Assembly of States Parties (ASP) further limited increases to the Court’s budget.
Second, in the past, States’ cooperation with the Court has been less than stellar. Although the Security Council referred both the Sudan and Libya situations, it failed to provide additional funding or other support for either investigation. Further, numerous States Parties refused to arrest former President Omar al-Bashir of Sudan. The ICC’s first trial of a perpetrator charged with participating in the atrocities in Darfur was not the result of Security Council or member State efforts, but rather because Sudanese citizens eventually rose up against al-Bashir’s regime. States similarly failed to execute the arrest warrants issued in the Libya cases, the result being that the alleged perpetrators have either died or remain at large. The ICC’s cases against Kenya’s president and deputy-president allegedly failed because Kenya failed to cooperate in providing the Court with documentary evidence and also failed to protect witnesses. Though not a party to the Court, the United States has certainly attempted to interfere with the Court’s operations, displaying an openly hostile attitude toward the Court and adopting adverse policy and legal actions during the Bush and the Trump administrations.
After the Invasion
Since the Russian invasion, States have rallied behind the ICC, emphasizing its crucial role in bringing perpetrators of serious international crimes to justice. As an initial matter, the news reports of alleged atrocities being committed in Ukraine prompted a record-breaking 43 States to refer the situation to the ICC for investigation, which the OTP thereafter promptly commenced.
To aid the OTP, States have pledged funding and other resources. In March, the United Kingdom pledged an additional 1 million pounds in funding and also assigned war crimes investigators to assist the ICC. The European Union agreed to provide additional funding and help with evidence gathering on the ground in Ukraine. Lithuania, Poland, and Ukraine entered into a Joint Investigation Team (JIT) agreement, whereby the parties agree to work together to share evidence and resources so as to facilitate prosecutions of atrocities committed in Ukraine at the ICC or in the relevant domestic jurisdictions. With assistance from Dutch investigators, on May 17, 2022, the ICC announced that it had deployed its largest ever team of investigators, forensic experts, and other support staff to Ukraine to investigate atrocity crimes. Prosecutor Karim Khan confirmed that 21 States had committed to seconding national experts to assist the OTP’s work and 20 had committed to contributing financially in response to the invasion.
Even the United States has changed course, with officials in the Biden administration openly encouraging the ICC’s investigation into atrocities committed by Russian forces in Ukraine, and members of Congress – including past opponents of the Court – now voicing support for its mission. The United States government is apparently considering how it might be able to assist the Court financially without running afoul of the previous legislation limiting cooperation with the ICC.
The Possibility of Increasing the ICC’s Perceived Legitimacy?
Can the increased level of support for the ICC translate into increased success, and therefore, increased perceived legitimacy, even among States and others currently skeptical of the Court? We are cautiously optimistic—at least if the States that currently support it continue to stand behind the Court and ensure its funding, even after the current Russia-Ukraine case recedes from the headlines.
Money and resources do not ensure convictions, but justice cannot be served unless both are adequate. Though one cannot blame all the ICC’s difficulties on budget constraints, lack of funding has negatively influenced the OTP’s ability to successfully conclude its cases. For example, the lack of adequate staffing has required the OTP to forgo further pursuing some of the cases before it, such as the Burundi and Georgia investigations and the second Ivory Coast investigation. The OTP’s 2019-2021 Strategic Plan referenced the possibility of further prioritizing cases given that the Office expected an increase in the number of situations and cases without the corresponding increase in resources. The lack of adequate staffing and resources was highlighted as a key challenge for the OTP in the September 2020 Report issued by the group of independent experts who the ASP appointed to review the Court’s processes. The Report, however, did not include recommendations to increase the ICC budget—presumably because the ASP had indicated that such recommendations would not be welcomed. In short, at the behest of States, the Court’s docket continues to expand, but without States providing the resources to sufficiently manage that docket.
As to Ukraine in particular, lack of funding seemingly explains why approximately eight years passed following Russia’s annexation of Crimea and its occupation of Eastern Ukraine without the ICC opening a formal investigation. Recall that the ICC launched a Preliminary Investigation into the situation in Ukraine after the country filed its declaration accepting the Court’s jurisdiction over crimes committed in its territory from Feb. 20, 2014. In Dec. 2020, the OTP shared the results of its investigation on the ground, concluding there was a reasonable basis to believe that a broad range of crimes falling within the Court’s jurisdiction had been committed in Ukraine. Nevertheless, then-Prosecutor Fatou Bensouda also explained that the Ukraine situation would be deprioritized because of limitations of operational capacity due to thin resources.
We applaud States for giving money and seconding investigators to the Court following the full-scale Russian invasion this year. But funding consistency – broad and sustained financial support to the Court across its organs and divisions – is of critical importance. As the OTP itself has stated, it needs its own augmented and trained staff so that it can efficiently and effectively plan for and staff all its cases. It needs even more resources now with its growing caseload. In addition to funding the OTP, however, States must also increase funding to the other organs for the Court to function properly. States are apparently willing to do whatever it takes to address domestic atrocities where the victims are nationals. The same attitude should prevail when it comes to supporting the ICC’s investigations. It is true that international justice is expensive. But, as former ICC President Eboe-Osuji has argued, investing in justice is likely to cost significantly less than the considerable amounts which States spend on their militaries to address atrocities; the possible outcome may be a more peaceful and stable world.
Nor should States be permitted to selectively contribute to the Court. Every situation the Court investigates involves mass atrocities and scores of innocent victims who, without the ICC, may never receive justice. Indeed, Prosecutor Khan has confirmed that the OTP will not earmark funds specifically for Ukraine but will instead deploy them across all situations. Although European States are the primary funders of the Court, and although European States and the United States appear particularly keen on accountability for Russia’s aggression, we cannot forget that the Court exists to provide justice for all victims. As Mark Kersten has already argued, States have an opportunity to sustainably fund the Court beyond the Ukraine situation, make the exceptional unexceptional, and not “risk entrenching a two-tier system of international justice.”
The unique response to Russia’s invasion provides a legitimacy opportunity for the ICC to show that with funding, increased investigatory resources, and cooperation from States, it can deliver convictions of high-level suspects after fair trials. International justice is not swift, however, meaning that States will have to continue to back the Court over the long run. Further, States will need to cooperate to deliver suspects who hide behind their national borders; commentators have already pointed out the difficulty the ICC faces in obtaining custody over Russian President Vladimir Putin or other high-level officials. Recall also that States created the ICC as a court of last resort, operating on the principle of complementarity. It was not designed to hold accountable every perpetrator of atrocity crimes, and indeed, it does not have jurisdiction over Russia’s aggression. Other courts, domestic and internationalized, will also have to play an accountability role.
By unprecedented funding and other support for the ICC since Russia’s aggression against Ukraine, many States have shown that they recognize the important role that the Court can play in providing accountability for actions that have not only endangered Ukrainians, but also the world at large. Although the Russian invasion of Ukraine is a devastating development, it has been encouraging to note the number of States – including some previously skeptical of or hostile to the Court – that have responded with financial and other support that may allow the ICC to fulfill its mandate and provide justice to victims. This support has the potential to lead to a “virtuous cycle” in which improved access to resources leads to public successes for the Court, thereby increasing its perceived legitimacy with States. Conversely, if States fail to sustain this support, these important outcomes for the Court and for the victims of atrocities may be lost, raising the risk that the Court’s public legitimacy may sink lower than it was before the invasion.
An expanded version of the arguments presented here will appear in the authors’ forthcoming article in the American University Law Review to be published in 2023.