(Editor’s Note: This is the introduction to a Just Security Symposium on U.S. support for the International Criminal Court’s Trust Fund for Victims. Links to other articles in the series can be found below.)
The atrocities committed in Ukraine since Russian forces invaded in 2014, and again in February 2022, have prompted the United States to enact a remarkable new piece of legislation that allows it to support the International Criminal Court (ICC or “the Court”) with respect to the situation in Ukraine, including by providing assistance to victims.
On Dec. 30, 2022, President Joe Biden signed into law the 2023 Consolidated Appropriations Act, which includes a “War Crimes Accountability” provision amending the American Servicemembers Protection Act of 2002 (ASPA). The War Crimes Accountability provision permits funding for investigations and prosecutions of foreign nationals, and assistance for victims and witnesses, related to the situation in Ukraine.
This Symposium focuses specifically on U.S. assistance to victims of atrocities and highlights the important role the ICC’s Trust Fund for Victims can play in that regard. The Trust Fund for Victims is an entity which is independent from the ICC, and which provides assistance and reparations to victims of atrocity crimes within the Court’s jurisdiction. Domestic legislation has created a tangled web of limitations on U.S. engagement with the ICC. This Symposium unpacks those laws to suggest that a pathway exists for the United States to contribute to the Trust Fund for Victims – in the Ukraine situation and beyond, and demonstrates that it is in the strategic interests of the United States to contribute to the Trust Fund.
The Symposium has four parts:
- Part I explains that the United States has strategic interests in contributing to the ICC Trust Fund for Victims to support victims in Ukraine, and victims throughout the world who are suffering the effects of mass atrocities.
- Part II outlines the provisions of the ASPA and explains the Dodd Amendment to that Act, which creates exceptions to the ASPA’s prohibitions on engagement with the ICC. Part II also addresses the explicit carve-out for victims’ assistance to Ukraine incorporated in the newly-passed War Crimes Accountability provision.
- Part III examines the Office of Legal Counsel’s (OLC) interpretation of the ASPA and the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, FY 2000-2001. Part III explains the areas of permissible engagement with the ICC identified by OLC.
- Finally, Part IV explains that even without the War Crimes Accountability provision, the United States is allowed to contribute to the Trust Fund for Victims, because it is separate from the ICC. Part IV details the basis for this distinction between the Trust Fund for Victims and the Court and it sets out the reasons why the United States (and others) should support the Trust Fund, and the victims it serves.
The articles in this symposium are written by different authors and represent a diverse range of perspectives. Articles I & IV are authored by Public International Law and Policy Group and reflect legal and policy analysis. Articles II & III are written by attorneys at Debevoise & Plimpton LLP, provide legal analysis and commentary on the topic, and are intended for informational purposes only. The views and opinions expressed in these articles reflect the views and opinions of the individual authors and not of Debevoise & Plimpton LLP.