In December 2022, the International Criminal Court’s Office of the Prosecutor (ICC OTP) launched its Policy on Gender Persecution. The Policy reflects the OTP’s existing commitment to focus its resources and attention on investigating and prosecuting sexual and gender-based violence (SGBV) crimes, including the crime of gender persecution. Moreover, the Policy builds upon the OTP’s prior work in this area, including its 2014 Policy Paper on Sexual and Gender-Based Crimes. This article highlights and discusses the OTP’s Gender Persecution Policy, while also situating its place in the trajectory of ICC’s progress related to the investigation and prosecution of SGBV crimes, and in particular the crime of gender persecution. Below, we first give an overview of the Rome Statute’s contributions to the development of international criminal law regarding SGBV crimes. Next, we address the OTP’s 2014 Policy Paper and describe some of the investigations and prosecutions of SGBV crimes which resulted from the OTP’s specific decision to ensure that these crimes were not overlooked. We then turn to the 2022 Gender Persecution Policy, detailing some of its key features and briefly discussing some implementation challenges.

The Rome Statute: Developing International Criminal Law Related to the Investigation and Prosecution of SGBV Crimes

Because the ICC functions based on a system of complementarity where it may only seize a case if the relevant state is “unwilling or unable” to prosecute, the Court is in a unique situation where through positive complementarity it can promote accountability and the development of international criminal law within national jurisdictions. Thus, through its focus on the definition of gender, as well as on the investigation and prosecution of SGBV crimes, the ICC has been fostering the development of international criminal law in this area, both within international as well as within national jurisdictions.

The ICC was the first international criminal tribunal to define “gender” within its founding statute. According to Article 7(3) of the Rome Statute, “gender” “refers to the two sexes, male and female, within the context of society.” The Rome Statute’s definition of gender has been criticized, due to its focus on the binary nature of the definition. Nevertheless, Article 21(3) of the Rome Statute requires that the statute’s provisions be interpreted and applied consistently “with international recognized human rights, and be without any adverse distinction founded on grounds such as gender.” Thus, both the 2014 Policy Paper and the 2022 Gender Persecution Policy adopt a broader view of gender and thereby enable the OTP to also adopt a more progressive, and non-binary, understanding of gender. However, this contemporary view taken by the OTP does not conflict with the Statute’s definition, since gender persecution crimes are understood from the perception of the perpetrator. The Gender Persecution Policy explains this, stating, “Gender refers to sex characteristics and social constructs and criteria used to define maleness and femaleness.”

In addition, the Rome Statute also criminalized a broader range of SGBV crimes than prior international criminal tribunals. Under the Rome Statute, acts of “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” may be prosecuted as underlying acts supporting charges of crimes against humanity (if the contextual elements of crimes against humanity are met) or as war crimes (when committed in the context of armed conflict). The Rome Statute is also the only international instrument to expressly recognize the crime against humanity of gender persecution. For gender persecution to constitute a crime against humanity, the perpetrator must target an “identifiable group or collectivity” based on gender grounds. Such groups include, for example, men, women, girls, boys and/including LGBTQI+ persons. Other international criminal tribunals had limited the reach of the crime of persecution to political, racial, or religious grounds. Thus, including the crime of gender persecution within the Rome Statute constitutes a significant step in the development of international criminal law related to the investigation and prosecution of SGBV crimes.

The 2014 Policy Paper: In Theory and In Practice

In its 2006 Report on Prosecutorial Strategy, the OTP had already signaled that it would select cases “paying particular attention to methods of investigations of crimes committed against children, sexual and gender-based crimes.” The OTP echoed a similar goal in its Prosecutorial Strategy for 2009-12, which repeated the objective of addressing charging practices in relation to gender crimes. Under the leadership of Prosecutor Fatou Bensouda, OTP’s 2012-2015 Strategic Plan announced a strategic goal committed to enhancing “the integration of a gender perspective in all areas of . . . work” and to paying “particular attention to sexual and gender-based crimes.” And in 2014, after extensive consultations with ICC States Parties, civil society, academia, and relevant United Nations agencies, the OTP launched its Policy Paper. With the 2014 Policy Paper, the OTP declared that it would adopt concrete steps to address the challenges it has previously faced in investigating and prosecuting SGBV crimes.

The 2014 Policy Paper broadens the OTP’s view of the definition of gender, explicitly interpreting “context of society” as acknowledging “the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys.” Moreover, the 2014 Policy states the OTP will interpret and apply the definition of gender consistently with Article 21(3) of the Rome Statute and internationally recognized human rights. And the OTP confirmed in the 2014 Policy that it would consider acts of violence and discrimination related to socially constructed gender roles. The 2014 Policy also commits to bringing charges for SGBV crimes whenever the OTP concludes there is sufficient evidence to support them, and it recommends applying a gender analysis to all stages of the OTP’s work, including preliminary examinations, investigations, and prosecutions. Finally, the 2014 Policy recognizes that it may be difficult for the ICC alone to carry out this progressive agenda related to the investigation and prosecution of SGBV crimes. Instead, it specifically references positive complementarity and encourages states to carry out their primary responsibility of investigating and prosecuting these crimes, with support from the OTP.

In practice, the OTP made significant strides in advancing the goals of the 2014 Policy Paper. Under Bensouda’s leadership, the OTP initiated 13 new preliminary examinations, nine of which included SGBV crimes, and four which were brought on the prosecutor’s own motion. In addition, the OTP concluded two preliminary examinations (Nigeria and Ukraine) where it found that the criteria to proceed with investigations was met; in both situations, SGBV crimes were included. Moreover, the OTP opened seven new investigations, six of which encompassed allegations of SGBV crimes. Following the 2014 Policy Paper, the OTP increased its practice of charging defendants with SGBV crimes: in the four years that followed the Policy, SGBV crimes constituted nearly fifty percent of the crimes charged.

The OTP’s conviction record on SGBV charges, however, was more nuanced. In the Katanga and Ngudjolo Chui cases, although both defendants were charged with SGBV crimes, neither was ultimately convicted of such charges. In the Bemba case, the Appeals Chamber overturned a conviction on SGBV charges, and defendant Jean-Pierre Bemba Gombo, a former military leader now serving as Minister of Defense of the Democratic Republic of the Congo (DRC), was ultimately acquitted of all charges. On a more positive note, Bosco Ntaganda, the former military chief of staff of an armed militia group operating in the DRC, was charged with SGBV crimes, convicted of such charges, and the conviction was confirmed on appeal; thus, the Ntaganda case represents the first final conviction for SGBV crimes in the Court’s history. Most recently, Dominic Ongwen, a former commander of the Ugandan Lord’s Resistance Army, was convicted of numerous SGBV charges, making it the first case where the OTP supported a crimes against humanity charge with forced marriage as an inhumane act. In sum, despite mixed results, it can be argued that since the launch of the 2014 Policy Paper, the OTP’s investigation and charging practices regarding SGBV crimes have improved substantially. One might expect that the OTP will also have further success in obtaining convictions on such charges in the near future.

The Crime of Gender Persecution and the 2022 Gender Persecution Policy

The crime of gender persecution has not been prosecuted until recently. For the first time in the ICC’s history, in September 2019 a Pre-Trial Chamber recognized charges of gender persecution in Prosecutor v. Al Hassan. The trial against Al Hassan Ag Abdoul Aziz, a high-ranking administrator of the Islamic Police in Timbuktu, commenced in July 2020, and evidence regarding the commission of the crime of gender persecution has been submitted. Most recently, the OTP brought gender persecution charges in a case against Ali Muhammad Ali Abd-Al-Rahman. The trial against this defendant, an alleged leader of the Militia/Janjaweed in Darfur, Sudan commenced in April 2022 and is ongoing.

Under the leadership of Prosecutor Karim Khan, KC, and to enhance the OTP’s ongoing efforts to provide justice to victims of SGBV crimes, the OTP launched its Policy on Gender Persecution in December 2022. This Policy, launched after two rounds of public commentary (for our commentary see here), recognizes that SGBV crimes, including gender persecution, are “among the gravest crimes in the [Rome] Statute,” and confirms that investigating and prosecuting these crimes is a “key priority.” The Gender Persecution Policy also expresses the OTP’s commitment to pay “particular attention” to the crime of gender persecution “at all stages of its work from preliminary examination, investigation, to trial, sentencing, appeal and reparations.”

In addition, the Policy is commendable for other reasons. First, it includes a list of definitions of key terms as “gender,” “gender persecution,” “intersex,” and “LGBTQI+,” and as to “gender,” the Policy reaffirms that gender is a social construct that can evolve over time. The Policy reinforces this view of gender by defining “gender persecution” as a crime “committed against persons because of sex characteristics and/or because of the social constructs and criteria used to defined gender.”

Second, it includes definitions of victims who do not identify as men or women, thereby signaling that the OTP will employ a broad lens when considering the victim population subject to gender persecution. Through this Policy, the OTP has expressed its willingness to adopt an intersectional approach that acknowledges the inter-relationship between gender and other aspects of an individual’s identity which may render that individual particularly vulnerable to SGBV crimes, including the crime of gender persecution.

Third, the Gender Persecution Policy adopts a broad view of persecution, criminalizing persecution based on the perpetrator’s beliefs about what it means to be male or female. This type of subjective view of persecution is consistent with most expert commentary in this area of the law and reflects OTP’s progressive view about the crime of gender persecution.

Fourth, the Gender Persecution Policy clearly affirms the OTP’s commitment to investigating and prosecuting SGBV crimes, including the crime of gender persecution, as well as to the development of international criminal law more broadly. This commitment is reflected in the Policy in OTP’s clear stance of cultural relativism, stating that “breaches of fundamental rights cannot be ignored, dismissed or justified on the basis of culture.” The Gender Persecution Policy thus aligns with the modern understanding that arguments about cultural relativism cannot defeat accountability for SGBV and gender persecution crimes.

Fifth, the Policy analyzes the six elements of persecution as a crime against humanity under the Rome Statute; by doing so, the Policy provides clarity to different investigative and prosecutorial teams at the ICC as to the type of evidence that will be necessary to prove the different elements of the crime of gender persecution. In fact, the Policy describes in detail how the OTP will approach its investigation and prosecution of gender persecution throughout the different stages of the ICC’s criminal process.

Sixth, to further facilitate the prosecution of the crime of gender persecution, the Policy includes a detailed analysis of the distinction between motive and intent as they relate to the investigation and prosecution of this crime.

Last, the Gender Persecution Policy addresses various implementation challenges with a promise that the Policy will be regularly reviewed, and that the OTP itself will continue to monitor the implementation of the Policy.

Implementation Challenges

Although the Gender Persecution Policy itself contemplates the need for future oversight and anticipates implementation challenges, it is inevitable that stakeholders and court observers will look for outcomes, such as investigations, prosecutions, and convictions of gender persecution crimes. Moreover, the OTP will need to demonstrate its ability to lead in the development of international criminal law regarding the crime of gender persecution. To successfully implement the Gender Persecution Policy, the OTP will likely require staff training protocols, the creation of additional expert materials on gender persecution (such as, for example, additional materials on the distinction between motive and intent), as well as ongoing internal monitoring. An additional implementation challenge is related to victim participation. As we argue in a forthcoming article (“Prosecuting Gender Persecution at the ICC: Definitions, Policies, and Practice,” 46 Fordham International Law Journal 1 (2023)), a well-developed victim participation regime may facilitate regular collaboration with victims of gender persecution which can in turn aid the prosecution of this crime as well as the development of an effective reparations regime.

In sum, a successfully implemented Gender Persecution Policy can lead toward higher numbers of convictions of SGBV crimes, including gender persecution crimes. Additionally, a successful implementation of the Policy may ensure that the OTP’s focus remains on the prosecution of gender persecution. Although the Gender Persecution Policy is a progressive and impressive document, it remains crucial for the OTP to remain committed to ensuring its successful implementation.

IMAGE: Women in Lukodi celebrate after Dominic Ongwen, a child soldier- turned- commander, was found guilty by the International Criminal Court of war crimes and crimes against humanity, including a massacre in their village back in 2004, in Lukodi, Uganda, on February 4, 2021. (Photo by Sumy Sadurni / AFP) (Photo by SUMY SADURNI/AFP via Getty Images)

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Last July, the Public International Law and Policy Group (PILPG) made one such proposal in the form of model legislation to establish a Ukraine High Court for War Crimes, which we discussed in Opinio Juris. The model legislation – which PILPG developed in partnership with Ukrainian and international experts, including the law firm Weil, Gotshal & Manges – would create an “internationalized” domestic court modelled on the existing High Anti-Corruption Court of Ukraine to prosecute high-level cases of war crimes, crimes against humanity, and aggression. 

For over a year, the United States appeared skeptical about efforts to address the crime of aggression. But on Mar. 27, U.S. Ambassador for Global Criminal Justice, Beth Van Schaack, announced that the United States supports the creation of an internationalized domestic court in Ukraine to prosecute the Russian crime of aggression. The U.S. proposal hues closely to the model set forth last summer by PILPG and its partners.

Following Ambassador Van Schaack’s announcement, Professor Rebecca Hamilton wrote an essay critiquing the U.S. plan in Just Security. The essay described two downsides to an internationalized domestic tribunal, which we would like to specifically address here.

The Ukrainian Constitution is Not an Insurmountable Obstacle

First, Article 125 of the Ukraine Constitution prohibits the establishment of “special and extraordinary tribunals.” Ukraine judicial experts have explained to us that this provision is intended to prohibit temporary courts created by executive authority.  The prohibition would not likely apply to an internationalized domestic court like the United States is suggesting if created through the normal legislative processes. In 2018, Ukraine established the High Anti-Corruption Court, which includes international advisers of the type envisioned by internationalized tribunal dedicated to prosecuting the crime of aggression against Ukraine. Ukraine could presumably use the same model and legal pathway to create an internationalized tribunal without running afoul of its Constitution. 

While Ukraine is fairly unique in its prohibition of special and extraordinary tribunals, it is worth noting there are ample comparative state practice precedents for creating internationalized domestic courts throughout the globe, including the Regulation 64 Panels of Kosovo, the War Crimes Chamber of the Court of Bosnia and Herzegovina, the Special Department for Adjudicating Trials Against Perpetrators of War Crimes of the Belgrade District Court, and the Iraqi High Court, whose prosecutors were assisted by U.S. Department of Justice attorneys, whose defense counsel were foreign attorneys, and whose judges were assisted by foreign judges associated with the International Bar Association.

Head of State Immunity Would Not Block All Prosecutions for Those Responsible for the Crime of Aggression

Second, there is concern that, unlike a hybrid tribunal created through an agreement between Ukraine and the United Nations General Assembly, an internationalized domestic tribunal would not be able to prosecute the two Russian leaders who may be most responsible for the Russian Aggression – President Vladimir Putin and Foreign Minister Sergei Lavrov – under existing International Court of Justice (ICJ) precedent regarding domestic prosecution of heads of state and foreign affairs ministers. But in announcing the new U.S. policy, Ambassador Van Schaack pointed out that an internationalized domestic court could nevertheless prosecute others responsible for the planning and execution of the crime of aggression against Ukraine. Such persons might include certain members of the Russian parliament,  the Minister of Defense, and the Chiefs of the General Staff. Even if Putin and Lavrov are out of reach, an indictment of such persons for the crime of aggression could be an important symbolic and strategic development. 

Moreover, head of state immunity is a complex legal doctrine and its contours have never been fully tested against a sitting head of state.  In the Belgium Arrest Warrant case, the ICJ stated that head of state immunity does not apply to proceedings before international courts.  What makes a court international enough for this purpose remains an open question. While Ambassador Van Schaack said the United States did not favor an effort to obtain an initial authorization from the United Nations General Assembly because of difficulties in obtaining a sufficiently large majority vote, in response to evolving events on the ground it is plausible that U.N. politics will make it possible to get a General Assembly endorsement after the Court is established, which along with imbedded international advisers might render the institution international enough to pierce head of state immunity under the precedent of the Special Court for Sierra Leone.

In addition, if Putin and Lavrov one day relinquish their positions, they could potentially be tried by an internationalized domestic court since their personal immunity (ratione personae) ends when they leave office, and functional immunity (ratione materiae) may not apply to the crime of aggression. In 1999, the U.K. House of Lords ruled that former Chilian President Augusto Pinochet was not immune from prosecution for the international crime of torture. With no precedent on the application of head of state immunity to former leaders accused of the crime of aggression, it is possible that a former President Putin or a former Foreign Minister Lavrov could be prosecuted in an internationalized domestic court once out of office.  

Ambassador Van Schaak’s announcement was a game changer. As documented in Michael Scharf’s article in the Harvard Journal of International Law, since the conclusion of the Nuremberg trials, the United States had opposed the creation of an international court with jurisdiction over the crime of aggression as well as the use of universal jurisdiction to prosecute the crime in domestic courts. Whatever shape an aggression tribunal ultimately takes, we applaud the new U.S. position which is likely to generate momentum for the prosecution of Russia’s crime of aggression against Ukraine. 

IMAGE: From left, Ambassador-at-Large for Global Criminal Justice Beth Van Schaack, State Department interim spokesman Vedant Patel, Acting Assistant Secretary, Bureau of Democracy, Human Rights, and Labor, and Coordinator for Global Democratic Renewal Under Secretary for Civilian Security, Democracy, and Human Rights Erin Barclay, listens as Secretary of State Antony Blinken speaks at a briefing on the 2022 Country Reports on Human Rights Practices at the State Department in Washington, Monday, March 20, 2023. (AP Photo/Andrew Harnik)

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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.

IMAGE: The flag of the International Criminal Court is shown flying at The Hague, Netherlands. (Photo via Getty Images)

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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.

IMAGE: The ICC seal on a window at the International Criminal Court Building in The Hague. (Photo via Getty Images)

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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.

Conclusion

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.

Image: Ukraine’s then-Prosecutor General Iryna Venediktova (C) and Prosecutor of the International Criminal Court, Britain’s Karim Khan (R), visit a mass grave on the grounds of the Church of Saint Andrew in Bucha, on the outskirts of Kyiv, on April 13, 2022, amid Russia’s military invasion launched on Ukraine. – A visit by the International Criminal Court’s chief prosecutor to Bucha — the Kyiv suburb now synonymous with scores of atrocities against civilians discovered in areas abandoned by Russian forces — came as the new front of the war shifts eastward, with new allegations of crimes inflicted on locals. (Photo by FADEL SENNA/AFP via Getty Images)

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On September 2, U.S. officials announced that International Criminal Court (ICC) Prosecutor Fatou Bensouda and a top-level aide, Phakiso Mochochoko, had been designated for asset freezes and other financial sanctions under Trump’s June executive order declaring that the ICC’s inquiries into claims of American atrocities in Afghanistan “threaten the national security and foreign policy of the United States.” U.S. officials designated Bensouda on the ground that she has led the investigation in Afghanistan, one of 123 countries, including many U.S. allies, which belong to and support the ICC. Mochochoko was designated on the ground that he has “materially assisted” her.

Each of us has assisted ICC prosecutors over the years. All four of us also hold dual citizenship – in Ireland, Canada, Hungary, or Serbia, as well as the United States – and may be deemed “foreign persons” subject to sanctions under the executive order. We fear we are at special risk, that our own property may be frozen, and even that we may be criminally prosecuted for work we do in support of the prosecutor’s efforts to bring perpetrators of atrocities to justice.

These fears compelled us last Thursday to become plaintiffs, along with the nonprofit Open Society Justice Initiative, in a federal lawsuit challenging the actions of the president, his secretaries of State and Treasury, his attorney general, and the departments they head.

Each of us takes great pride and comfort in the knowledge that the First Amendment to our Constitution protects our rights to think, to speak, to write, to associate with others, and to earn a livelihood. Our chosen profession obligates us both to work for justice and to prepare future generations of lawyers to do the same. It even expects us to do some work pro bono, that is, without salary and for the public good.

We have focused our professional work on justice for atrocities like genocide, war crimes, and crimes against humanity. Ending atrocities is the core mission of the 22-year-old International Criminal Court, and so over the years each of us has spoken and written many times about the activities of ICC Prosecutor Bensouda and others in her office. At times we even have provided pro bono advice, as the Prosecutor’s Special Adviser on Children in and affected by Armed Conflict, as leaders of teams conducting research that aids ICC prosecutions, and as authors of amicus briefs and other writings, including some that favor the ICC’s investigation of allegations against Americans suspected of torture in connection with the war in Afghanistan.

Inspiring our work is a U.S. legacy: the post-World War II Nuremberg trials where American men and women and their allies established that persons who commit international crimes will be punished. The law governing the ICC Prosecutor urges countries to bring such prosecutions in their own national courts. When a country avoids this – as has the United States with respect to torture of detainees and other crimes – international investigation is authorized both by the law of the ICC and the legacy of Nuremberg.

The president’s executive order undermines Nuremberg’s legacy. It also causes us to fear that if we continue our constitutionally protected work – if we offer advice to the ICC Prosecutor about Afghanistan or other matters, publish, or simply say what we think – the government’s arsenal will be deployed to silence us. As professors of law, as lawyers, and as Americans, we have no choice but to resist the Trump administration’s unconstitutional actions.

Diane Marie Amann, the Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law, has served since 2012 as the Special Adviser to the International Criminal Court Prosecutor on Children in and affected by Armed Conflict. Margaret deGuzman is James E. Beasley Professor of Law and Co-Director of the Institute for International Law & Public Policy at Temple University Beasley School of Law. Gabor Rona is Professor of Practice at Cardozo School of Law. Milena Sterio is the Charles R. Emrick Jr.-Calfee Halter & Griswold Professor of Law at the Cleveland-Marshall College of Law. All four contributed this commentary and joined as co-plaintiffs in the federal lawsuit it discusses, Open Society Institute et al. v. Trump et al., solely in their personal capacities, and not on behalf of their universities or any other institution.

Image: General view of Nuremberg International Military Tribunal (IMT) court taken in September 1946, during the war crimes trial of nazi leaders during the world war II. The trial started in November 1945 and ended on October 01, 1946, but evidences generated other trials until 1949. AFP via Getty Images

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