(Editor’s Note: This is Part I of a Just Security Symposium on United States support for the International Criminal Court’s Trust Fund for Victims. Other articles in the series can be found here.)
Contributing to the International Criminal Court’s (ICC) Trust Fund for Victims serves the strategic interests of the United States. The Trust Fund provides an efficient and effective vehicle for the United States to channel assistance to victims of atrocity crimes, including in Ukraine, while strengthening the foundations of U.S. leadership in the ongoing fight against impunity.
Lawmakers perceive legal ambiguity around whether the United States may contribute to the Trust Fund given past efforts by the U.S. Congress to shield American service members and citizens from the ICC’s jurisdiction. As Part II and Part III will explain, various federal laws prohibit general financial assistance to the ICC, even following the recent addition of the “War Crimes Accountability” provision. However, because the Trust Fund for Victims is a functionally different entity than the Court itself, Part IV explains that the United States could contribute financially to the Trust Fund for Victims in situations beyond Ukraine.
This article, the first in this Symposium, explains that the United States has strategic interests in contributing to the ICC Trust Fund for Victims. Parts II, III, and IV explain why it is legally permissible for the United States to contribute financially to the Trust Fund for Victims despite a prevailing notion to the contrary.
U.S. Strategic Interests in Contributing to the Trust Fund for Victims
There are several key reasons contributing to the Trust Fund for Victims is in the strategic interests of the United States.
1. Contributing to the Trust Fund for Victims is strategically aligned with the United States’ enduring commitment to transitional justice and allows for an amplification of U.S. values and moral leadership abroad.
The United States’ commitment to global leadership in promoting transitional justice and prioritizing support for victims of atrocity crimes is central to its moral authority, foreign policy, and national security priorities. Presidential Study Directive-10 – a specific form of Executive Order issued by the president that carries the force and effect of law – states that “preventing mass atrocities is a core national security interest and a core moral responsibility of the United States of America.”
The United States is the only country with an Ambassador for Global Criminal Justice (formerly Ambassador for War Crimes). And on the legislative front, U.S. senators have proposed critical transitional justice legislation, including the Syrian War Crimes Accountability Act and the Rohingya Genocide Determination Act of 2021, and Congress enacted the Elie Wiesel Genocide and Atrocities Prevention Act of 2018. Each of these efforts is designed to enhance the U.S. government’s capacity to prevent, mitigate, and respond to crises perpetrated by acts of genocide and other atrocity crimes.
Contributing to the Trust Fund for Victims is a natural extension of these efforts and provides a tangible opportunity to amplify U.S. values and moral leadership.
2. Contributing to the Trust Fund for Victims strengthens the United States’ holistic approach to transitional justice.
The United States has a longstanding commitment to global accountability. Such efforts retain bipartisan support and date back to the United States’ instrumental role in the creation of the Nuremberg and Tokyo tribunals. The United States also played a key role in establishing the U.N. International Criminal Tribunals for the Former Yugoslavia and for Rwanda; the Special Court for Sierra Leone; and the hybrid tribunals for Cambodia and Lebanon. It again played an active rolethroughout the negotiating process to establish the ICC’s Rome Statute and the ICC Rules of Procedure and Evidence and Elements of Crimes. Those efforts were guided by the desire to ensurethe rules were in compliance with international standards of due process and fair trial rights.
More recently, President Joe Biden signed the Justice for Victims of War Crimes Act on Jan. 5, 2023, the latest step in a series of bipartisan bills that highlight legislative efforts toward increased accountability. This law aims to bring those implicated in war crimes committed abroad to justice, regardless of whether the accused or the victims are U.S. citizens or servicemembers. Just a week prior, on Dec. 27, 2022, the War Crimes Rewards Expansion Act became U.S. law and increased the State Department’s authorization of rewards for information that leads to the arrest, conviction, or transfer of a foreign national accused of war crimes, crimes against humanity, or genocide.
Transitional justice requires both accountability and restorative justice; complementing current U.S. calls for global accountability by contributing to restorative justice for victims strengthens a holistic approach to transitional justice.
The Trust Fund for Victims is one of the most impactful vehicles for providing restorative justice to victims. While the Trust Fund for Victims is only a piece of the transitional justice puzzle, it is an important component of existing accountability efforts. Contributions to the Trust Fund for Victims would provide a valuable addition to the transitional work the United States already pursues.
3. There are few other effective or efficient mechanisms to direct U.S. financial support into the hands of victims.
The purpose of the Trust Fund for Victims is to provide restorative justice and is distinct from general humanitarian assistance mechanisms. Restorative justice, which centers around the restoration of the livelihood of victims, is a critical component of transitional justice distinct from accountability and provides individuals with the chance to move forward from the rights violations they experienced.
The Trust Fund for Victims is an already established and fully functioning mechanism that provides an effective and efficient opportunity for the United States to get funding into the hands of victims of atrocity crimes. It has received financial contributions from 50 State Parties, and the United States can direct and earmark funds to ensure consistency with national political and legislative stances on the preservation of state sovereignty and the status of U.S. personnel and the ICC. This directing of funds would allow the U.S. government to avoid any political concerns of financial resources being used for conflicts with which the United States is not aligned politically.
Part IV of this Symposium provides additional details on the Trust Fund for Victims and why it is in need of additional funding.
4. Participating in the Trust Fund for Victims situates the United States squarely within an international framework of like-minded states committed to holistic transitional justice.
Contributing to the Trust Fund for Victims provides an opportunity for the United States to partner with like-minded states to support holistic transitional justice. The work of the Trust Fund for Victims has a deeply symbolic purpose in recognizing atrocity crimes committed on a global scale and supporting victims and communities impacted by such crimes. It serves as an extension of the international community and, with 50 states funding the Trust Fund, support from the Trust Fund for Victims is interpreted as support from the international community at large.
Such a global response provides a powerful statement to victims and perpetrators that victims do not remain victims in perpetuity. U.S. contributions to the Trust Fund for Victims would demonstrate its engagement in the international community and support of the international community’s efforts to pursue transitional justice.
Earmarked Contributions to the Trust Fund for Victims will further the United States’ Strategic Interest in Ensuring Justice for Ukrainian Victims
Accountability is a central objective of the United States’ support to Ukraine amid Russia’s war of aggression. Complementing such accountability efforts with support to Ukrainian victims would be in the direct interests of the United States to ensure justice for the Ukrainian people, and contributing to the Trust Fund for Victims presents a key opportunity for the United States to act on this interest.
In March 2022, the ICC opened an investigation into the Situation in Ukraine. The opening of the investigation allows the Trust Fund for Victims to provide funds and support to victims of Russia’s war pursuant to the Trust Fund for Victim’s assistance mandate, which empowers the Fund to provide assistance to victims affected by situations before the Court without the need to link the harms suffered to crimes charged in a particular case.
The ongoing atrocities committed in Ukraine have pushed the need for accountability of grave international crimes onto the world stage. Serious violations of international law committed in the Russian war in Ukraine have heightened the need for a strong U.S. response to illustrate its ongoing commitment to the ideals of global accountability and the support for victims and witnesses in the face of these violations.
Since Russian forces invaded Ukraine in February 2014, and again in February 2022, thousands of atrocity crimes have been committed. Over 18,000 civilian casualties in Ukraine have been documented by the Office of the U.N. High Commissioner for Human Rights (OHCHR). The General Prosecutor of Ukraine reports over 68,000 instances of the crimes of aggression and war crimes, as of February 2023. Biden has publicly stated the importance of holding Putin and the Russian army accountable, and declared Putin a war criminal. Secretary of State Antony Blinken has also named the actions of the Russian army as war crimes, calling for holding the perpetrators of such crimes accountable and reaffirming U.S. cooperation with international institutions to address such violations of international law.
The United States has provided Ukraine with tens of billions of dollars in military support since the Russian invasion. Beyond military assistance, U.S. support to Ukraine can be substantially enhanced by a concerted effort to fund restorative justice for victims.
Now is a unique political moment to capitalize on increasing bipartisan and bicameral support for expanding transitional justice efforts, including those related to the Trust Fund for Victims. The recent explicit War Crimes Accountability carve-out in the 2023 Consolidated Appropriations Act to assist the ICC’s work with respect to Ukraine, including for victims’ assistance, is a testament to such political will and reveals the legal recourse available for this effort.
Such widespread political support is further reflected by the surge of congressional resolutions supported by both Democrats and Republicans on strengthening accountability and supporting the Court’s involvement in Ukraine, such as the unanimous Senate resolution led by Senator Lindsey Graham (R-SC) to hold the Russian government accountable, including through ICC investigations. Recent bipartisan legislation encouraging U.S. support for reparations and restoration in Ukraine reveals a growing political desire for building up the livelihood of the Ukrainian victims.
The time to act on such an opportunity is now. Russia’s war in Ukraine demonstrates the value of this current moment for meaningful U.S. action. Contributing to the Trust Fund for Victims provides the United States with an important opportunity – distinct from contributing to the Court directly. In addition, contributing to the Trust Fund for Victims with an earmarked contribution for Ukrainian victims will reaffirm the United States’ support for Ukraine and will contribute toward holding Russia accountable for its actions in an immediate and effective way. Beyond Ukraine, seizing this current moment provides valuable momentum for future U.S. contributions to the Trust Fund for Victims and deepened U.S. support for a holistic approach to transitional justice.
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.