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​What is the future of relations between the UN Security Council and the International Criminal Court?

Overcoming Obstacles to Funding ICC Investigations in UN Security Council Referred Cases

Could the blockages on using U.N. assessed contributions for the Court be surmounted in the future? For the US, any voluntary contributions would run afoul of the current provisions of FRAA, but not of the legal position barring use of UN-assessed contributions for an independent organization. But if the [US law] were to change, US voluntary contributions could be a way to further US policy in providing support to the ICC on a case-by-case basis, not to mention its attendant national interests.

by Honorable Stephen J. Rapp

A major practical challenge facing the International Criminal Court (ICC) is the need for adequate resources to investigate the situations within its jurisdiction and to prosecute the individual cases that are selected. To date, the Court has subsisted on funding from Assembly of States Parties members as well as some voluntary contributions. However, now in its 13th year of operations, the ICC Office of the Prosecutor (ICC-OTP) still remains much smaller than their counterparts at the International Criminal Tribunals for the former Yugoslavia and Rwanda at comparable times. In light of an expanding caseload and growing pressure for more ICC interventions, the ICC-OTP has pushed for substantially greater resources. While these requests resulted in significant increases in 2013, the 2014 increases were more modest.[1] Given tight government budgets in major donor states and the slowdown of new states joining the ICC, it is hard to envision substantial budget growth in the coming years.

Of course, these resource limitations affect the number of cases that the Prosecutor can bring and the prospect of securing sufficient evidence to prove the charges filed. As a prosecutor in the US domestic system, I remember being counseled early in my career to always have a least twice the evidence than one thought was reasonable in order to convict. Some witnesses might decide not to cooperate, others might not “come up to proof,” either forgetting important details or losing credibility because of inconsistencies revealed on cross-examination. But this was a national system with robust services for witness protection as well as investigators who knew well the witnesses’ communities and the kind of pressures or threats that they would face. At the international level, and in light of the extreme risks involved in testifying, one can expect that many more witnesses will be reluctant to come forward or to follow-through with the expected testimony. The absence of a sufficient “cushion” may have played a role in recent setbacks for the Prosecution. The ICC-OTP appears to have learned from this experience, as evidenced by the greater emphasis that Prosecutor Fatou Bensouda and her Deputy James Stewart are placing on ensuring well-prepared trials. Yet, the long delay in presenting charges against the “other side” involved in the 2010-11 post-election violence in Côte d’Ivoire likely shows that reserves are low.

Where then could the ICC-OTP obtain the resources to investigate the situation in Syria if Russia and China decided not to veto another UN Security Council (UNSC) referral resolution as they did in May 2014 when they stood against 13 members voting in the affirmative? Who would pay if the UNSC decided, as the UN High Commissioner for Human Rights has recommended, to refer the situation in South Sudan to the ICC? Both countries present major prosecutorial and logistical challenges that are far more complex than the ICC’s initial cases, such as Katanga and Chui in Democratic Republic of Congo which involved multiples charges stemming from a single massacre.

There is an additional funding option for the cases that are before the Court by way of UNSC referral. The Rome Statute was drafted with the explicit expectation that the costs of UNSC referrals under Chapter 7 of the UN Charter would be borne by the United Nations. This would put UNSC referrals to the ICC on the same footing as at the original ad hoc tribunals, which were also creatures of Chapter 7 and benefited from funding out of U.N. member assessments. However, both the UNSC resolutions referring the situations in Sudan and Libya contained identical language that “recognize[d] that none of the expenses incurred in connection with the referral … shall be borne by the United Nations.” The UNSC appears unwilling to abandon this language; the unsuccessful French resolution to refer Syria to the ICC contained this provision along with a call for states to make voluntary contributions. So far, however, there appears to be little interest among states in making such gifts, aside from Canada’s $500,000 contribution to the Sudan investigation.

The language barring the use of UN funds was requested by the United States. Both the Bush and Obama administrations opposed such funding on the theory that it would result in US-assessed contributions going to the ICC in violation of the Foreign Relations Authorization Act of 2000-2001 (FRAA). This early Bush-era statute provides:

> None of the funds authorized to be appropriated by this or any other Act may be obligated for use by or for support of, the International Criminal Court unless the United States has become a party to the Court…

Significantly, the more well-known American Service-Members Protection Act of 2002 (ASPA) does not prohibit funding; rather, ASPA contains an amendment offered by Senator Christopher Dodd that enables the provision of a range of assistance:

> Nothing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice Saddam Hussein, Slobodan Milosevic, Osama bin Laden, other members of Al Queda, leaders of Islamic Jihad, and other foreign nationals accused of genocide, war crimes or crimes against humanity.

The Obama Administration began in 2010 to provide support to the ICC on a case-by-case basis, but because of FRAA, this has been limited to “in-kind” assistance.

Even if the FRAA language were repealed, elements within the U.S. government have determined that it is legally impermissible to transfer UN-assessed contributions to organizations outside the UN’s budgetary control. Of course, even if the FRAA and the restrictive legal opinion were to change, such a transfer of UN funds could be opposed by some of the other 71 UN member states that are not state parties of the ICC. And, funding would need to be approved by the UN General Assembly, which follows consensus on budgetary issues.

Could the blockages on using U.N. assessed contributions for the Court be surmounted in the future? For the US, any voluntary contributions would run afoul of the current provisions of FRAA, but not of the legal position barring use of UN-assessed contributions for an independent organization. But if the FRAA language were to change, US voluntary contributions could be a way to further US policy in providing support to the ICC on a case-by-case basis, not to mention its attendant national interests.

Indeed, based on efforts spearheaded by the American Bar Association, the Senate Appropriations Committee has four times included a provision in its Foreign Operations bills that would temporarily override FRAA and allow funding of ICC cases for certain specific purposes. When first proposed, this language generated minor opposition from Republican senators; but most recently, the provision emerged from the subcommittee chaired by Senator Lindsey Graham (R-SC) without opposition. This language has yet to be approved by a House committee, and the Senate language has not emerged from conference committees with the House or been included in any final appropriations act. But, the unanimous support in the Senate in 2015 increases the likelihood of eventual enactment.

If this language becomes law, several conditions would need to be met before US funding could be made available for use in an ICC case. First, the ICC would have to agree to accept funds to be used exclusively for one or more of the statutory purposes. The ICC Registrar has indicated that he would gladly create accounts to receive such restricted donations, provided the ICC has the need for resources in the specified areas. The Senate language also makes reference to Section 2015 of ASPA, the Dodd amendment, implying that any aid could only be earmarked for specific cases.

Secondly, the funds would need to be identified and the relevant Congressional committees provided with an opportunity to “hold” (i.e., block) the transfer of funds. Is it realistic to envision a situation in which a US Administration would propose to send money to the ICC and a Congress, noted for blocking nominations and sometimes closing down government, would not object? Maybe. It would take a situation like Darfur, which generated overwhelming support for accountability on both sides of the congressional aisle. Similar bipartisan support for accountability in Syria exists, although the only way to the ICC is blocked by Russia and China. There is also strong American support, and no opposition by any government, to taking legal action against Islamic extremist groups whose violent actions from the Sahel to the Levant may constitute crimes against humanity, war crimes, or even genocide. The ICC Prosecutor’s recent action in the state-referred situation in Mali to charge Ahmed al-Faqi al-Mahdi of Ansar Dine with the war crime of destruction of cultural objects in Timbuktu is the kind of prosecution that can gather almost universal favor. Similarly, the ICC Prosecutor told the UNSC that she was determining whether to probe Islamic State extremists for the killing of Christians on a beach in Sirte, Libya. If, heaven forbid, these crimes were to become more widespread, strong US support to identify the responsible leaders and issue international warrants for their arrest could emerge. Furthermore, Members of Congress in both parties have shown themselves not to be automatically opposed to the ICC when they provided unanimous support in 2012 and 2013 for the legislative expansion of the War Crimes Rewards Program that now permits rewards for the arrest and transfer of ICC fugitives.

During the establishment of the ICTY in 1993, it was the United States that first championed international criminal justice as a tool for the Security Council “to restore international peace and security.” That first resolution recognized that this end could only be accomplished by taking “effective measures to bring to justice the persons who are responsible” for grave international crimes. That power lives on in the ability of the Security Council to refer similar situations to the ICC. As it continues to support international justice efforts, the United States must overcome the obstacles in law and policy that prevent it from materially assisting the ICC in making that justice truly effective.

[1] For excellent discussions of ICC-OTP staffing levels and budget resources see Stuart Ford, “How Much Money Does the ICC Need?” and Susana SaCouto and Katherine Cleary Thompson, “Investigative Management, Strategies, and Techniques of the ICC’s OTP,” in Carsten Stahn, ed., The Law and Practice of the International Criminal Court, (Oxford 2015), at 84-104, 328-349.

Honorable Stephen J. Rapp

Distinguished Fellow, The Hague Institute for Global Justice and U.S. Holocaust Memorial Museum, 2015-; Member, Board of Advisors, American Bar Association’s International Criminal Court Project; Ambassador-at-Large, Office of Global Criminal Justice, U.S. Department of State, 2009-2015; Prosecutor, Special Court for Sierra Leone, 2007-2009; Senior Trial Attorney and Chief of Prosecutions, International Criminal Tribunal for Rwanda, 2001-2007.