Statement of Purpose

The purpose of this paper is to assess whether the United States (“U.S.”) may contribute to the Trust Fund for Victims (“Trust Fund”) in accordance with U.S. domestic law.

Executive Summary

The Public International Law & Policy Group (“PILPG”) and Debevoise & Plimpton LLP have prepared this paper assessing the domestic legal framework governing financial contributions by the United States to the Trust Fund for Victims (“Trust Fund”).

The Trust Fund was created by the Assembly of State Parties (“ASP”) to the Rome Statute and exists independently of the International Criminal Court (“ICC” or “Court”).  The Trust Fund’s mandate is to implement Court-ordered reparations and to provide additional assistance to victims through implementing partners.  It is administered by a separate Secretariat and Board of Directors, its accounts are kept separately from those of the Court, and its programmatic funding comes primarily from voluntary contributions solicited without the involvement of the ICC, which can be used only for victims and their families.  The Trust Fund for Victims has faced chronic underfunding since its creation and has announced fundraising to be a central priority.

Three federal laws shape the U.S. government’s ability to contribute to the ICC: (1) the 2002 American Servicemembers’ Protection Act (“ASPA”), (2) the Admiral James W. Nance & Meg Donovan Foreign Relations Authorization Act, FY 2000-2001 (“FRAA”), and (3) the Consolidated Appropriations Act of 2023 (“2023 CAA”).  The first two of these statutes define the ICC as the court created under the Rome Statute – a definition that arguably excludes the Trust Fund for Victims – and are guided by the fundamental goals of protecting U.S. persons and allies from ICC prosecution, and preserving U.S. sovereignty.  Given this legislative intent, and the Trust Fund’s functional independence from the ICC, these laws arguably do not constrain the U.S. government’s ability to contribute to the Trust Fund for Victims.

Even if the restrictions in those statutes were interpreted to extend to the Trust Fund for Victims, a provision in the 2023 Consolidated Appropriations Act explicitly carves out permission for the United States to render assistance to the ICC related to the “Situation in Ukraine”, “including to support victims and witnesses,” notwithstanding the restrictions established by the Foreign Relations Authorization Act.  This provides a basis on which the U.S. government can contribute to ICC victims’ assistance programs related to Ukraine, including through the Trust Fund for Victims.

Recent developments, including the Russian invasion of Ukraine, have highlighted the need to support victims of international atrocity crimes. Should it make a political decision to do so, the U.S. government could contribute to the Trust Fund for Victims without contravening any domestic law.

About PILPG’s Policy Planning Initiative

PILPG’s Policy Planning Initiative supports the development of long term, strategic policy planning that is crucial to international accountability, global conflict resolution, and the establishment of international peace.  The Initiative provides timely and accurate policy planning analysis and work product on pressing and future policy conundrums by leveraging PILPG’s deep network of talent within the international legal and policy communities and experience with its pro bono clients globally. PILPG Policy Planning focuses on advising policymakers, policy shapers, and engaged stakeholders on pressing issues within the arenas of international law, war crimes prosecution, and conflict resolution efforts. This includes identifying and addressing gaps within existing policies, anticipating key conundrums and questions that will riddle future policy decisions, applying lessons learned from comparative state practice, and proactively producing and sharing work product to inform such policies and avoid crisis decision making.