The good news for the International Criminal Court (ICC) as 2022 ends is that Vladimir Putin’s war in Ukraine has generated huge demand for accountability for grave international crimes. The bad news is that many of the court’s own member states are as slow as ever to back that principle with hard cash.
‘Twas ever thus. July last marked the 20th anniversary of the Rome Statute under which the court was established. For most of that time, it’s fair to say, funding has been a whip hand limiting its impact, with those who talk loudest about its indispensability frequently slowest to pay.
Many of the worst culprits are western countries not associated with penury. In 2019, for example, just before the two-year coronavirus pandemic, Amnesty International decided to name and shame Germany, Italy, France, Britain, Canada and Japan for nothing less than “hypocrisy at a new level”.
The problem is that nation states are pretty impervious to criticism other than by their own electorates. The ICC itself is dependent on what it can parlay by not antagonising larger contributors. Supportive countries gather in blocks reflecting common positions rather than the greater good.
The result, as one well-known international law blogger characterised it, is “the financial strangulation of the court” – believed to have been what Donald Trump’s national security adviser, the irascible John Bolton, was referring to when he declared: “We will let the ICC die on its own.”
So funding is invariably a hot topic when the 123 countries that support the court meet annually before Christmas, along with an attendant ecosystem of NGOs, alternating between the glamour of New York and the sombre charm of The Hague where the week-long gathering begins on Monday.
The assembly of states parties, as it’s known, dislikes washing the dirty linen of the ICC in public – but, as in any healthy democracy, it doesn’t always have that choice.
In 2020, the assembly was dogged by a warts-and-all report which described an institution beset by “a culture of fear”. The ICC was, the report said, “bureaucratic”, “inflexible”, “non-inclusive”, and “lacking in accountability”. Some judges saw themselves as “aristocracy” and behaved accordingly.
In 2021, the glimpse under the bonnet was similarly unedifying, with a new prosecutor, Karim Khan QC, finally in place after a competition in which an international panel of 14 was narrowed to a shortlist of four – including Irish judge Fergal Gaynor – none of whom ultimately got the job.
The “sore” issue this year, however, is more invidious when it comes to the future of the court. It refers to ICC member countries attempting to cherry-pick the circumstances in which they wish the court to spend their contributions – a wholly new phenomenon prompted by the Ukraine war.
According to Human Rights Watch, in a briefing note for this week’s assembly, the Ukraine conflict has “highlighted the unevenness in victims’ access to justice” depending on where in today’s geopolitical maelstrom they are located.
Why? Because “after the opening of the Ukraine investigation [by the ICC], some parties responded with enthusiasm to the prosecutor’s call for voluntary contributions... at times explicitly linking their contributions to political support for the Ukraine investigation”.
Instead, Human Rights Watch maintains, “the renewed political commitment to the ICC that has derived from... the expanded conflict in Ukraine must translate into robust financial, political, and practical support for the court’s global mandate”.
Delphine Carlens, head of the international justice desk at the Paris-based International Federation for Human Rights (FIDH), agrees that the long-term stakes are what matters.
“Member states must ensure long-term financial support for the court by contributing to its general unrestricted budget – rather than allocating funds for specific chosen situations or specific organs,” she says.
What Human Rights Watch and the FIDH have identified is a new and troubling development which will be difficult to stop if it gains traction: the idea that international justice amounts to a list of conflict situations curated by the ICC – so that member states can pay their contributions and specify where they want the money spent so as not to disturb any of their allies.
Unfortunately, it’s a prospect that’s likely to appeal to some governments – and not always perhaps the ones we expect.