(Editor’s Note: This is Part IV 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.)
Since Russia’s illegal invasion of Ukraine, there has been significant political interest, in the United States and elsewhere, in using the International Criminal Court (ICC) to ensure accountability. This signals a newfound openness by the United States to the ICC – one that is reflected in the fact that on Dec. 30, 2022, President Joe Biden signed the Consolidated Appropriations Act (CAA) of 2023 into law. The CAA includes a novel War Crimes Accountability provision allowing funding for investigation and prosecution for foreign nationals and assistance for victims and witnesses, related to crimes committed in the Russian war in Ukraine. While this creates an explicit carve-out for Ukrainian victims’ assistance, this Symposium argues the United States can and should contribute to the ICC’s Trust Fund for Victims beyond the situation in Ukraine.
Why might the United States be able to broadly fund the Trust Fund for Victims? The answer lies, as outlined in Part II and Part III, in the status of the Trust Fund for Victims and the fact that the American Service Members Protection Act (ASPA) and the Foreign Relations Authorization Act (FRAA) defined “the ICC” as “the court established by the Rome Statute.” In other words, our reading of the War Crimes Accountability provision does not disturb all of the prior legislation discussed in the previous Parts in the Symposium – legislation which purports to prohibit various forms of support to the ICC. As we argue here, that prior legislation can be read to permit the United States to contribute to the Trust Fund for Victims because it is not “the court established by the Rome Statute.” The court established by the Rome Statute has four primary organs – the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. But the Trust Fund for Victims is not one of those organs.
Structure of the Trust Fund for Victims
The Trust Fund for Victims was established by the Assembly of States Parties (Assembly) – a body composed of the Court’s member States that serves as its management, oversight, and legislative body and is similarly not an organ of the Court. The Trust Fund for Victims exists to aid the victims of crimes against humanity, war crimes, and genocide whose voices are often not heard and whose suffering is often forgotten. Specifically, the Trust Fund for Victims’ mandate is to (1) implement Court-ordered reparations and (2) provide physical and psychosocial rehabilitation or material support to victims of crimes that fall within the ICC’s jurisdiction.
The reparations programs are tied to individual convictions and court-ordered damages, by which the Court specifies appropriate individual or collective reparations to, or in respect of victims, including restitution, compensation, and rehabilitation. The Trust Fund’s assistance mandate empowers it to implement assistance programs designed to aid victims of crimes and their family members who have suffered physical, psychological or material harm as a result of the commission of any crime within the jurisdiction of the Court. In other words, the Trust Fund for Victims’ assistance mandate is not linked to accountability arising from a conviction. Instead, under the assistance mandate, the Trust Fund for Victims can aid a more extensive range of victims affected by the situations before the Court without the need to link the harms suffered to crimes charged in a single case. The Trust Fund for Victims is currently charged with implementing reparations awards in four cases (Katanga, Lubanga, Al Mahdi, and Ntaganda). It has assistance programs underway in Northern Uganda, the DRC, Cote d’Ivoire, the Central African Republic, Mali, Georgia, and Kenya.
That the Trust Fund for Victims has some relationship with the Court and the treaty that established it is not in dispute. But it is nevertheless a separate and independent entity. For example, Article 79 of the Rome Statute states that a trust fund shall be established for the benefit of victims of crimes within the jurisdiction of the Court. Article 79 specifically charged the Assembly of States Parties withdetermining the criteria for managing the Trust Fund for Victims. Using the powers delegated to it, inSeptember 2002, the Assembly established the Trust Fund for Victims. By that same resolution, the Assembly decided that the Trust Fund for Victims would have its own five-member Board of Directorselected by the Assembly to serve on a pro bono basis. In 2004, the Assembly established a “Secretariat of the Board of Directors of the Trust Fund for Victims to provide such assistance as is necessary for the proper functioning of the Board of Directors in carrying out its tasks.” At present, the Trust Fund for Victims Secretariat has 28 staff members who provide administrative support. In 2005, the Assembly created the Trust Fund for Victims Regulations which outline the Fund’s governance and operations in detail.
Although the Trust Fund for Victims is an independent body separate from the Court, it necessarily interacts with the Court. Indeed, it must do so because its role is to support victims and to help implement Court-ordered reparations in ICC cases. To carry out the Trust Fund for Victims’ mandate, its Secretariat receives support from the ICC’s Registry on administrative matters, including procurement and finance, security, human resources, and in-house legal services. For example, the ICC Registrar is empowered to establish the Trust Fund for Victims’ bank accounts and set guidelines for their operation. Nevertheless, the Trust Fund for Victims’ bank accounts are separate from the accounts of the ICC itself. The Trust Fund for Victims also works with the ICC organs that are tasked with victim engagement, such as the Victims Participation and Reparations Section, the Victims and Witnesses’ Section, and the Office of the Public Council. The Trust Fund for Victims’ working relationship with these ICC entities is necessary to permit the Fund to implement and administer reparations awards and assistance programs. However, the Trust Fund for Victims is functionally a separate entity from the ICC.
The Trust Fund for Victims Is Unique
The Trust Fund for Victims is uniquely worthy of support for several reasons. First, the Trust Fund for Victims works in a specific niche in terms of providing reparations to persons who have suffered as victims of atrocity crimes. Its programs provide sustainable change to the lives of the victims. As former Executive Director of the Trust Fund for Victims Pieter de Baan notes in the Trust Fund’s 2021 Annual Report:
Reparative measures address human suffering, and yet they transcend humanitarian action. Reparative measures provide victims of grave and specific crimes with a rights-based platform: to obtain recognition for their harm, and for its personal and social consequences; to co-create the shape and form of the measures, according to their present and evolving situation; and, finally, to appreciate the reparative value, towards overcoming harm and regaining resilience, dignity and hope.
Due to its reparations mandate, the Trust Fund for Victims works uniquely in countries torn apart by atrocities, seeking justice and reparations where there are no immediate solutions. This requires the Trust Fund for Victims to adopt a sustainable approach.
Also, the Trust Fund for Victims is not subject to year-long grants, allowing it to maintain its flexibility and enduring presence in the locations where it provides support. Without being restricted by single-source one-off grants, the Trust Fund for Victims can commit to engagement in a region regardless of its funding and continuously reevaluate the effectiveness of its implementing partners, adjusting as needed.
Finally, as noted in Part I, the Trust Fund for Victims receives financial contributions from 50 State Parties, the largest donors being Sweden, Finland, and the Netherlands. A contribution from the United States to the Trust Fund for Victims would allow the United States to leverage and catalyze donations from other states and stretch the impact the aid dollars can have.
The Trust Fund for Victims is Underfunded and Needs Support
The Trust Fund for Victims incurs two types of expenses: administrative and programmatic. The Assembly provides for the administrative expenses through assessed contributions from States Parties. In 2019, the Assembly allocated just over 3 million euros to the Trust Fund for Victims for administrative expenses (or 2.1 per cent of the total budget the Assembly allocated for ICC-related expenses). However, the Trust Fund for Victims receives no programmatic expenses from the Assembly. Those funds which are used to directly support victims through the Trust Fund for Victims’ reparations and assistance programs come either from fines and forfeitures levied against the convicted defendants or through voluntary contributions from private individuals, foundations, corporations, and States. Because the defendants who have thus far been convicted by the ICC have been declared indigent, that funding avenue has yielded only 330,000 euros. From 2004 to 2020, the Trust Fund for Victims had received 37.5 million euros through voluntary contributions, primarily sourced from State Parties.
While the funding provided to the Trust Fund for Victims may sound significant, it is not even sufficient to address the reparations awards that ICC Trial Chambers has issued in the four cases referenced above – awards which totaled more than $41 million (see reparations awards for the “Lubanga Case,” the “Katanga Case,” the “Ntaganda Case,” and the “Al Mahdi Case”). But beyond current reparations awards, the Trust Fund for Victims also must deliver on its assistance programs. AsAmbassador David Scheffer has noted, “tens of thousands of destitute individuals are registered victims in the cases being adjudicated by the ICC” and tens of millions of victims in the countries ravaged by conflicts are in need of assistance. At the Trust Fund for Victims’ current level of funding, these, and the many additional victims of atrocities – including those suffering currently in Ukraine because of Russia’s invasion – will unjustifiably and unnecessarily suffer.
The United States has often assumed a leadership role in seeking accountability justice for victims of mass atrocities. The passage of the War Crimes Accountability provision demonstrates that it is prepared to take that leadership role with respect to the atrocities committed in Ukraine. But it can do more to help more people. This Symposium has shown that supporting the Trust Fund for Victims is in the United States’ strategic interests and possible from a legal standpoint, despite previous legislation that generally prohibits support to the Court.
The United States has the resources and the legal tools to advance justice and support survivors of atrocity crimes through the Trust Fund for Victims. Now it only needs to find the political courage to do so.
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.