In for a penny, in for a pound? The (lack of) ICC funding for situations referred by the Security Council
The ICC continues to suffer widespread critique, notably regarding its costs. To alleviate pressure, the UN must adequately fund investigations where the Security Council refers situations.
It is undeniable that the International Criminal Court (hereafter: ICC or the Court) has got off to a rocky start (see inter alia: Guilfoyle, D). States habitually criticise the Court’s efficiency, and a significant part of the international community remains unwilling to join the Court. Yet, one of its more fundamental problems is often forgotten in the political debate: the funding of the Court itself.
Some of the situations that the Court investigates are brought before it by United Nations Security Council (hereafter: UNSC) referral. Experience has shown that such referrals result in a shift of responsibility (from the SC to the ICC) without accompanying funding: the Court is left with an increased investigative burden on an already stretched budget. This blog post proposes that the United Nations (hereafter: UN) should be obliged to provide funding for the situations the UNSC refers. Where the UNSC seeks to collaborate with the ICC to obtain international justice, it must provide the means to do so. If the ICC’s mismatch of resources and obligations continues to increase, the Court’s future itself might be in jeopardy.
Security Council Referrals and ICC Funding
In recent years, issues have arisen with the ICC’s funding, both regarding ICC resolutions that have to be approved for its budget each year, and the lack of UN funding for UNSC referred situations (see inter alia ICC-ASP/18/Res.6 (2019), §§ 144-148). Article 115 of the Rome Statute states that both States Parties and the UN shall provide the expenses of the ICC, the latter in particular for situations referred to the ICC by the UNSC. Article 115(b) explicitly notes that such funding is ‘subject to the approval of the General Assembly’ (hereafter: GA), making it a rather political issue. The GA is, in essence, a political representation of States. The decision of whether international justice should be funded economically should not be a decision based on political argumentation. The language that Article 115 uses, namely ‘shall be provided’, arguably means, in light of textual interpretation, that the UN has an obligation to fund, at least in part, situations based on UNSC referral.
Nevertheless, despite two situations being referred to the Court by the UNSC – Darfur (Resolution 1593 (2005)) and Libya (Resolution 1970 (2011)) – the UN provided funding in neither. In its own Resolutions, the ICC notes with concern that up until 2019, all ICC expenses incurred due to UNSC referrals have been borne exclusively by State Parties – amounting to approximately €61 million. ICC-ASP/17/Res.4 (2018) (§ N) thus encourages States Parties to continue discussions on a solution, and invites the ICC to continue this discussion in its institutional dialogue with the UN.
A viable solution is to incorporate, within the Regulations of the Court, a requirement that trials stemming from situations referred to the Court by the UNSC cannot be initiated without requisite UN provided funding. This reform does not create a new obligation for the UN, nor does it require an amendment to the Rome Statute which constitutes a lengthy and complicated process. It does, however, send a clear message that the UNSC can no longer refer situations to the Court without backing them up financially.
Critics of this proposal might argue that this would deter the UNSC from referring future situations to the ICC, resulting in a setback for international justice. However, if the UNSC fails to refer future situations to the ICC, these situations will remain under the sole political and institutional responsibility of the UNSC. If the UNSC is serious about pursuing international justice for these conflicts, they will have to back those intentions up with the financial means it takes to do so or resolve the situations themselves. If the UNSC wishes to use the ICC as a vehicle for international justice in the future, it should finish what it starts: no more empty words.
While this proposal might seem narrow to some, the procedural issue it attempts to address is a pressing one. Although the ICC’s establishment was considered a great success for the international fight against injustice and impunity, in practice its accomplishments lag behind its ideals. In order to increase its effectiveness, it is crucial to secure funding and make the Court less dependent on State Parties’ financial support. One should not understate the consequences if the UNSC fails to take responsibility: a paralysed ICC creates severe repercussions for international criminal justice.