Opening of Ukraine investigation should be a wake-up call to look again at ICC’s budget

Opinion

In an unprecedented move, 39 States Parties have referred the situation in Ukraine to the International Criminal Court (ICC). Lithuania sent their referral to ICC Prosecutor Karim Khan on 1 March and another 38 States led by the United Kingdom joined that request on 2 March. Ukraine had already accepted the Court’s jurisdiction twice, in 2014 and 2015, but since it is not a State Party to the Rome ICC Statute, it could not activate the “fast track” of a State Party referral and Prosecutor Khan would have had wait for approval by the ICC's Pre-Trial Chamber to open an investigation. The referrals from States Parties plus the pre-existing acceptance of ICC jurisdiction by Ukraine meant that step could be skipped and an investigation opened with immediate effect.

The catch in all of this is resources: as Prosecutor Khan himself said, both before and after the referrals, opening this new investigation would require the provision of more resources than had been foreseen in the ICC’s 2022 budget. Specifically, in his statement on 28 February, Prosecutor Khan said the following: “I will be calling for additional budgetary support, for voluntary contributions to support all our situations, and for the loan of gratis personnel.” 

The positive aspect of that statement is the call for contributions to support all of the ICC’s situations, recognising that opening a new investigation, even if it is one in which crimes are daily worsening in scope and intensity, should not be done at the expense of existing situations. Those situations, too, have ongoing crimes and victims equally deserving of justice. In this context, it also has to be recognised that it is not just the investigations of the Office of the Prosecutor (OTP) that require resources, but the full range of other services that go to support those investigations, including outreach and victims’ participation. Prosecutor Khan’s call should therefore be read in that light: the ICC needs more resources to sustain all of its investigations and all of the services and tasks undertaken by the ICC, and its Trust Fund for Victims, required to ensure justice and redress for victims.

The troubling aspect of Prosecutor Khan’s statement relates to the call for those contributions to be voluntary, i.e. outside the existing ICC budget. To be clear: civil society – and indeed some States Parties – have consistently criticised both the Committee on Budget and Finance and the ICC’s Assembly of States Parties for slashing the Court’s requested budget each year.  The Court’s existing budget is simply insufficient for it to address adequately each of the situations under preliminary examination and investigation, and those at trial.

However, voluntary contributions – and even gratis personnel – are not the answer, especially where they are linked to a particular situation. Two cases on point. The Special Court for Sierra Leone (SCSL) relied on voluntary contributions for its entire budget. As a result, leading SCSL officials spent inordinate amounts of time fund-raising, which ultimately ended with a cash infusion from the United Nations on several occasions. More pertinently, the Special Tribunal for Lebanon, which relies on voluntary contributions for 51% of its annual budget, basically closed in 2021 –bar hearing appeals that had already commenced – because voluntary contributions were not being paid. For both institutions, political will to address accountability was high when they were established, but dwindled as time went on. Political will is high right now to seek accountability for the crimes being committed in Ukraine; will that last long enough for investigations and trials to be completed? Or will it too dwindle as new priorities and crises emerge?

Another problem is the optics. Already, the OTP’s swift action raises questions as to how an investigation was opened so quickly – practically overnight following a State referral, a first in the ICC’s history. Yes, the situation in Ukraine had been under preliminary examination for years (already too long in the opinion of many), and the previous Prosecutor, Fatou Bensouda, had concluded in 2020 that an investigation was merited. So there was already a wealth of information that had been analysed by the OTP to determine whether there were sufficient grounds to open an investigation; all that was needed was a trigger. The value of the referral probably lies in its demonstration of political support for Ukraine and its people, but it does not look good that so many other investigations have languished for so long, including because of a lack of resources, some with apparent opposition among ICC States Parties and most – with the exception of Georgia – outside Europe.

More worrying, however, is what this could mean for the independence of the Office of the Prosecutor. One way in which the OTP’s independence is guaranteed is that where it investigates and prosecutes is informed by the law, free from any interference, and that it determines where it will spend its resources in order to achieve its mandate. “Pay for play” not only risks the money running out, it risks the Prosecutor’s attention being guided towards a particular situation because those referring it are willing to pay. To be clear: that does not seem to be happening here. Prosecutor Khan asked for States Parties to refer and has opened the investigation without, so far as we know, any chequebooks having been opened as well. His call for additional resources encompassed all situations before the court. 

But it is a slippery slope: it is not difficult to imagine a scenario where several situations meet the relevant Rome Statute criteria for investigation and prosecution. If one of those comes with the bill pre-paid, would that be sufficient for it to be prioritised by the OTP? What does that mean for the perception of the OTP’s independence from those offering to bankroll some investigations as opposed to others? What impact would this have on the negotiations on the ICC’s regular budget, funded and agreed to annually by all ICC member countries, both for the OTP and the rest of the Court? Again to be clear, this is not about Prosecutor Khan: this is about safeguarding the independence of the organ of the Court charged with making decisions, based only on the law, about which situations to investigate and prosecute.

Finally, we end where we began: the ICC’s regular budget is simply insufficient for the Court to discharge its mandate. This failing lies primarily in the lap of its States Parties, although the ICC must bear some responsibility for consistently having failed to ask for the resources it needs. The 2020 recent landmark review by a panel of independent experts recommended a conference of all stakeholders—ICC officials, States Parties, and civil society—to set a 10-year strategic vision for the court, including the level of activity the ICC is expected and desired to reach and the resources needed to get there. Following up this recommendation may be a way forward in the longer term. 

In the meantime, it was heartening to see Liechtenstein’s call for a positive response to the ICC’s regular budget requests. Indeed, this is where the real answer lies: provide more financial support to the Court through its regular budget, not through add-ons or ad hoc calls. Can we wait until December during the next meeting of all states parties, when the budget is usually agreed? Does that risk this whole crisis being long in the past? Hopefully yes, but that would risk memories of the current resource crunch having faded and new resource excuses arising. Perhaps what should be done now is a special session of the Assembly of States Parties, as a matter of extreme urgency, to review the Court’s budget for both 2022 and 2023 – and for States to contribute any financial or human resources it has to meeting that budget, not propping parts of the Court up from the outside. 

Alison Smith is Legal Counsel and International Criminal Justice Director at No Peace Without Justice.