Voluntary Contributions – Solution to the ICC’s Funding Crisis or Threat to its Independence and Effectiveness?

In this second opinion piece in the series, Amnesty International examines the Prosecutor’s campaign for voluntary contributions for his Office’s new Trust Fund for Advanced Technology and Specialized Capacity to support its investigations and highlights the need for additional safeguards to protect the independence and long-term effectiveness of the Court.

According to the Prosecutor, by end of May, at least 20 states had made or committed to make voluntary contributions to the new Trust Fund launched by the Office of the Prosecutor (OTP) in March 2022. On 29 September, the Chair of the Assembly’s Committee on Budget and Finance reported that several states have committed €8.6 million to the Trust Fund so far. In addition, the European Union, through its European External Action Service, have offered an additional grant of €7.25 million to enhance the technological tools used by the Office in the collection, processing and storing of evidence.

These contributions represent a long overdue boost in the resources of the OTP. The Committee on Budget and Finance has welcomed the readiness of states parties to support the enhancement of the investigative capacity and commended the Prosecutor’s efforts to enhance the quality of its investigations. It stated that the Trust Fund should enable the OTP to become increasingly efficient and agile.

Nonetheless, the Prosecutor’s decision to resort to voluntary contributions is not without significant risks to the independence and effective functioning of the Court.

Can the Prosecutor fundraise for investigations?

During the drafting of the Rome Statute, most states supported allowing voluntary contributions. Yet, concerns were expressed that this might impact unfavourably upon the independence and impartiality of the Court. As a result, Article 116 provides that governments, international organizations, individuals, corporations and other entities can make voluntary contributions to the Court, but subject to two important limitations.

First, a number of states insisted that Article 116 require that voluntary contributions must be received and used “as additional funds” to the “expenses of the Court”. Interpreting Article 116, some states argued convincingly that this recognition of voluntary contributions “as additional funds” implies that voluntary contributions should not be used to meet core expenses of the Court, which should be covered exclusively by assessed contributions through the annual budget with the costs shared by all states parties.

This has largely been the practice to date. For example, in 2020, the Court recorded €1.416 million in voluntary contributions, the vast majority of which were allocated to trust funds for specific purposes that in most cases could be described as “non-core” activities, including for: Building Legal Expertise and Fostering Cooperation; Seminars; Development of Interns and Visiting Professionals; Special Fund for Relocation of witnesses; Junior Professional Officer Programme; and Sponsored Travel to External Conferences.

Second, it was decided that Article 116 provide that voluntary contributions must be received and used “in accordance with relevant criteria adopted by the Assembly of States Parties.” This has partly been addressed in the Financial Regulation 7.2, which states that they may only be accepted by the Registrar “provided that they are consistent with the nature and functions of the Court.” In addition, the drafters of the Financial Rules and Regulations also developed Criteria for Voluntary Contributions that were adopted by the Assembly at its first session.

According to the Chair of the Working Group that drafted the Criteria, a considerable number of delegations were concerned that major donors of voluntary contributions might affect the independence of the Court. Disappointingly, however, the Criteria adopted by the Assembly provides little substantive guidance on where the Court should draw the line between accepting or refusing voluntary contributions. Rather than impose meaningful substantive limits, it simply requested that donors declare that their voluntary contributions are not intended to affect the independence of the Court. It also decided that the Registrar must be assured that any offered contributions “will not affect the independence of the Court” and “will fulfil any criteria the Assembly of States Parties may establish.” Although the latter requirement foresees that the Assembly may establish further criteria, it has yet to do so.

On the face of it, the establishment of the Trust Fund for Advanced Technology and Specialized Capacity – focused on strengthening the OTP’s capacity and expertise in three vital areas of its investigations – is an ambitious and compelling initiative that merits support. However, investigations are a core function of the OTP. Indeed, further examination of each of the stated uses of the Fund demonstrates that all three are central to the OTP fulfilling its duties under the Statute.

• Use of new advanced technological tools and equipment in the collection, analysis and processing of evidence is a core activity of a dynamic OTP. If the OTP’s tools and equipment to collect, analyse and process evidence are outdated and ineffective, Article 54(1)(b) places the Prosecutor under a duty to address the situation by taking “appropriate measures to ensure the effective investigation and prosecution of crimes within the jurisdiction of the Court.”
• Provision of enhanced psycho-social support to witness and survivors, as well as broader additional witness protection and support measures is part of the Court’s duty to protect victims and witnesses in accordance with Article 68(1). Protection and support measures must be effective, otherwise the Court cannot function.
• Enhancement of dedicated and specialised capacity with respect to investigations into crimes of sexual and gender-based violence and crimes against children goes to the duty of the OTP in Article 54(1)(b) to investigate and prosecute crimes effectively, including taking into account the nature of the crime “in particular where it involves sexual violence, gender violence or violence against children”.

Having identified these core resource needs, strong legal arguments can be made that the Prosecutor should have sought funding through the annual budget process (pursuant to Article 115), instead of resorting to voluntary contributions (pursuant to Article 116).

Do voluntary contributions threaten the independence of the Court?

Despite the limited focus of the Trust Fund, reliance on voluntary contributions for core activities raises significant questions regarding the independence of the Court. For example, Professor William Schabas has commented in relation to other international criminal tribunals that both partial and full reliance on voluntary contributions makes international criminal courts and tribunals:

“vulnerable to inappropriate influences and even manipulation, something incompatible with judicial bodies. Neither Prosecutor nor judges should be forced to contemplate the consequences for the Tribunal should they proceed with investigations and indictments that affect, even indirectly, the interests of a major donor State.”

This is far from an abstract concern. In 2011, The Times UK reported that Professor David Crane, former Prosecutor of the Special Court for Sierra Leone between 2002-2005, had acknowledged that Muammar Gaddafi was not indicted by the Special Court for alleged crimes in Sierra Leone due to concerns that major sponsors would have withheld funding of the Special Court. The article reported Professor Crane as stating:

“It was my political sense, dealing with senior leadership in the United Kingdom, United States, Canada, United Nations, and the Netherlands, that this would not be welcome…. Indicting Gaddafi would have been the “death knell” for the Court as the countries objecting would have pulled funding.”

Asked why he believed there was opposition from the international community to act on the evidence he had uncovered, he said: “Welcome to the world of oil.”

Of course, in this instance, the ICC Prosecutor is seeking voluntary contributions for defined investigative tasks. He has emphasised that the funds will be deployed based on his assessment of needs across all situations and has ruled out accepting earmarked contributions for specific situations. Nonetheless, these are significant sums of money and some states that have contributed so far have publicly expressed their expectation that the resources will be used to advance the investigation in Ukraine:

• Canada – “A voluntary financial contribution of $1 million to the Trust Fund will complement Canada’s support to the ICC and will allow the ICC to redirect much-needed resources to support the investigation of reported atrocities committed by the Russian forces in Ukraine.”
• Germany – “Germany will support the International Criminal Court (ICC) with an additional EUR 1 million, German Foreign Minister Annalena Baerbock said, stressing the need to bring to justice the inhumane crimes of the Russian Federation in Ukraine.”
• Republic of Ireland – Announcing a contribution of €3 million to the Trust Fund during his visit to Kyiv, Minister Coveney said: “I discussed with Foreign Minister Kuleba this morning the essential need for accountability for the appalling acts committed during the Russian invasion of Ukraine.”
• Romania – “The Ministry of Foreign Affairs (MFA) welcomes the approval by the Romanian Government, on Thursday, April 14, 2022, of the Decision…. on the payment of a voluntary financial contribution by Romania, in the amount of 100,000 euros, to the Trust Fund of the International Criminal Court (ICC) in order to support the work of the Office of the Prosecutor for the year 2022, in the context of investigations of war crimes, crimes against humanity and crimes of genocide committed in Ukraine.”
• UK – “The UK will offer the International Criminal Court military, policing and financial support as part of the global response to Russian war crimes in Ukraine…. An additional £1 million in funding will be provided, and soldiers with military expertise will be assigned to the ICC to help uncover evidence of war crimes.”

While the ICC Prosecutor has commented in relation to his new approach that independence is a “state of mind,” indicating that his independence is not affected if he is satisfied that his determinations have not been affected by extraneous considerations, the Prosecutor’s duty of independence includes ensuring that his Office is perceived as independent. Article 42(5) is clear that he must not engage in any activity that “affects confidence” in his independence.

There is no evidence that the Prosecutor’s use of the Trust Fund has been influenced by these statements by donors. However, having launched the call for voluntary contributions in the same press release as announcing its investigation in Ukraine and by accepting contributions from states that clearly intend to benefit the Ukraine situation, the Prosecutor, the Court and the Assembly must be alive to the risks that the Trust Fund is perceived as benefitting one situation.

Do voluntary contributions threaten the effectiveness of the Court?

Legal arguments aside, it is easy to see why the Prosecutor has resorted to call for voluntary contributions to support these vital tasks compared to making requests for additional resources through the annual budgetary process – a process which, in the last decade, has lost integrity and often results in the Court’s requests for increases being cut or rejected without a clear basis.

Voluntary contributions can be an important source of additional funds for the ICC, but they are not a reliable or sustainable source of funding to conduct core activities effectively, such as investigations. There is a danger that, by subjecting vital investigative tasks to the uncertainty of fundraising, the priority the Office attaches to these tasks will be determined by the goodwill of states. Given the Assembly’s track record of supporting the effective functioning of the ICC through its annual budget, this is a considerable risk.

Voluntary contributions for core OTP tasks also raise challenges for providing sound financial management of the Court. The Registry has warned and the Committee on Budget and Finance has acknowledged that contributions to the Trust Fund could lead to asymmetrical growth in capacity, capabilities and funding across the organs of the Court.

What can be done to protect the independence and effectiveness of the Court?

To manage the risks arising from the current campaign for voluntary contributions to the Trust Fund, it is important that the Court and the Assembly take immediate steps to ensure full transparency regarding the receipt and assessment of voluntary contributions and how the money is spent.

If the Office of the Prosecutor has not already done so, it should put in place effective monitoring systems to ensure that the resources are allocated across situations and the allocation is justified by reasons that stand up to scrutiny.

The Court should not normally report to the Assembly on voluntary contributions received in 2022 until its session in December 2023. However, given the risks associated with this Trust Fund, the Assembly should request the Court to report promptly and publicly at its next session on the voluntary contributions received this year and every year thereafter. The report should include:

• Full details of the voluntary contributions received, including: (1) whether the state complied with the Assembly’s request to declare that the voluntary contributions is not intended to affect the independence of the Court; and (2) whether the state attached any conditions or understandings to its contribution;
• The criteria and procedure applied by the Registrar and the Prosecutor in determining that accepted voluntary contributions “will not affect the independence of the Court,” including whether consideration was given to the public announcement by states of their contributions or other statements by state officials; and
• A full breakdown of how the money is being spent across all investigations.

Reports requested by the Committee on Budget and Finance for the Court to provide a spending plan for the Trust Fund in the context of the 2023 proposed Programme Budget, as well as a report on the governance of the Trust Fund should also be made public.

In addition, the Assembly should review and further develop its Criteria on Voluntary Contributions at its next session in December 2022, providing more concrete direction to donors on how to make voluntary contributions and to the Registrar and the Prosecutor on when to accept or reject voluntary contributions. The Criteria should be reviewed regularly addressing any issues identified in the Court’s annual report.

In light of the concerns identified above, this year, the Assembly should prioritise expanding the Criteria to provide further direction:

• To donors on publicly announcing their contributions, without affecting the independence of the Court;
• To the Registrar and the Prosecutor on assessing contributions against the criteria that they “will not affect the independence of the Court”, including consideration that should be given to the content of announcements and other statements made by states and their officials;
• To the Committee on Budget and Finance and the External Auditor on providing effective oversight of the Court’s application of the Criteria on Voluntary Contributions.

Finally, in its annual resolution on Strengthening the International Criminal Court and the Assembly of States Parties, the Assembly should, in addition to calling on all states parties to support the new Trust Fund:

• note that the Trust Fund supports the OTP’s ability to conduct core investigation tasks; and
• acknowledge that the Trust Fund does not prevent the Prosecutor from either requesting additional resources for these tasks from the annual budget or accessing the contingency funds, should the resources of the Trust Fund be insufficient.