1. Introduction
When creating the ICC, the international community was well-aware of the destitution typical for victims of mass atrocities. Not only is the sheer number overwhelming, counted in the tens (and even hundreds) of thousands,Footnote 1 but the hardship of each individual victim is multiplied as they typically suffer compound physical, mental, and economic harms. Most survivors have not only been subjected to life-changing physical injuries, including in many cases sexual violence but also have to face the loss of their loved ones, as well as suffer traumatization through witnessing the cruellest forms of violence. In addition, their homes and livelihood have been looted, destroyed or lost through displacement and deportation. Moreover, their families and communities are likely to have suffered the same attacks so that victims lack the necessary social network, such as family or village community, to alleviate individual hardship. Furthermore, victims find themselves in a war-torn society while the conflict is still ongoing, or in the immediate aftermath of conflict when the state is still trying to recover from the devastation. In either situation, the state is unlikely to have sufficient resources, or the necessary infrastructures, to deal with the medical, emotional, social, and economic needs of the victims.Footnote 2 Furthermore, the state might not be willing to help a particular group of victims, for example if they belong to the ethnic group that had been targeted by the state in the first place.Footnote 3
Right from the beginning of the negotiations for the Rome Statute, the question of victims formed a central part of the debate, not least because of the pressure from various NGOs.Footnote 4 At the forefront of this development stands the Trust Fund for Victims of the ICC. While the model of organizing victim redress through a trust fund has been used before,Footnote 5 this is the first time that a trust fund has been attached to a criminal court.Footnote 6 Surprisingly, the Trust Fund of the ICC has to date attracted little attention from scholars and remains vastly under-researched. This article examines the second mandate of the Trust Fund, the general assistance mandate. Whereas the problematic overlap between the reparation mandate and general assistance mandate of the Trust Fund has been raised in the literature,Footnote 7 this article will explore how the general assistance mandate actually works, what its weaknesses are and what impact it might have on the Court in general. It will illustrate how the general assistance mandate is draining already scarce resources while the Trust Fund is unable to raise sufficient funds. It will further demonstrate how the general assistance mandate directly weakens the legitimacy of the ICC as it undermines the presumption of innocence, could have a substantial negative impact on both international and national Court proceedings, and (last but not least) mask the weaknesses of the ICC. This article argues that general assistance has no place in an international criminal court and should, therefore, be completely separated from the ICC.
2. The reparation gap
At the Rome Conference, the negotiating parties were all too aware of the shortfalls of the UN ad hoc criminal tribunals which did not provide any concrete help to victims.Footnote 8 Consequently, the Rome Statute introduced a completely new regime of victim redress,Footnote 9 including the Court’s power to make direct reparation awards (even without an application by victims) and the establishment of a trust fund for victims. Unfortunately, the ICC reparation scheme suffers from a number of problems, which accumulate to such a wide reparation gap that only a handful of sufferers will ever be able to benefit from reparation awards.
First, the number of victims eligible for a reparation award is extremely limited. Besides the fact that only a minority of armed conflicts are investigated by the ICC, even in a conflict selected by the Court, specific atrocities might not be included. For example, the Ongwen investigation is limited to four case locations in northern Uganda, thereby excluding all LRA attacks in the Teso region. Furthermore, the ICC charges very few defendants in each situation and many of the crimes they are accused of are left out of the indictment. For example, despite of the many crimes Thomas Lubanga Dyilo is allegedly responsible for, only the enlisting and conscripting of child soldiers were included in his indictment.Footnote 10 The Appeals Chamber famously rejected the victims’ application to add new charges of sexual slavery and cruel and inhuman treatment in spite of the fact that there were ample indications that sexual violence was widespread among female child soldiers and was often the main aim of their recruitment.Footnote 11 Thus, the numerous victims of sexual violence who were not child soldiers are ineligible for any reparation award.Footnote 12 Furthermore, even of those victims who are legally qualified, not all might be able to access the ICC in practice. Many victims, for instance, do not have the means to provide the necessary evidence for the harm they have suffered. This applies particularly to victims in rural areas who often have little access to medical care and therefore cannot provide documented evidence for their injuries. Even where a victim belongs to the small group eligible for a reparation award, such a reparation order can only be made subsequent to a conviction. Besides the fact that, so far, few prosecutions have ended in a conviction, the criminal procedure from indictment to reparation award can take many years. So far, while the number of estimated victims in the situations currently under the investigation of the ICC runs in the millions, only three reparation orders have been issued.Footnote 13 Yet, for victims suffering serious physical and psychological injury and having lost their home and means for income, every month counts. Finally, even the limited group of victims who do qualify for a reparation award will not receive adequate reparation from the defendant as hardly any defendants will have the necessary means. This problem is dealt with by Rule 98(5) of the ICC Rules of Evidence and Procedure (RPE), which allows the Trust Fund to complement any reparation award from ‘other sources’. Consequently, one of the main functions of the Fund is to raise sufficient funds from voluntary donations to be able to fulfil a reparation order. Complementing the sources for reparation awards does not, however, deal with the other problems, namely the limited number of eligible victims, uncertainty of convictions, and tardiness of any award. Thus, the reparation gap is too wide for the ICC reparation scheme to have any noteworthy tangible impact on the group of victims as a whole. A few victims get too little help, too late.
In order to lessen the problems caused by the reparation gap, the Trust Fund has a second mandate, the so-called general assistance mandate.Footnote 14 Being all too aware of the urgent needs of victims on the one hand, and the huge reparation gap on the other, the general assistance mandate is designed to offer immediate help to a larger group of victims,Footnote 15 in what Dixon calls the ‘Swiss cheese’ model, ‘where assistance is used to fill in the holes of a legally restricted reparations process’.Footnote 16 The general assistance mandate allows the Trust Fund to provide assistance to victims in areas under the jurisdiction of the Court without any link needed to a particular case. In Lubanga, for example, the Appeals Chamber explicitly ‘urged the Court’s Trust Fund for Victims to issue “assistance” measures to victims who fall outside the scope of victimisation at trial’ and to include victims of gender-based violence.Footnote 17 Rather than redressing the wrong committed by a convicted perpetrator, the general assistance mandate provides, therefore, humanitarian assistance based on the victims’ needs. This assistance can take the form of physical, psychological or material supportFootnote 18 and consists of:
rehabilitation and reinsertion of victims, socio-economic reintegration, healing of memories, support for victims of sexual violence by counselling and micro-credit schemes, holistic community healing, non-formal education, mutual caring activities, addressing stigmatisation and ensuring peace and reconciliation, victim empowerment, livelihood support and more.Footnote 19
The Trust Fund itself, however, does not provide this assistance directly to the victims, but instead funds individual programmes that are run by intermediaries,Footnote 20 in most cases NGOs. This allows a wide spread of projectsFootnote 21 and the Trust Fund praises itself for benefitting hundreds of thousands of victims.Footnote 22 Indeed, before the Court made its first reparation order in 2012, the Trust Fund claims to have already ‘provided tangible assistance to over 400,000 victims in the absence of convictions and reparations by the Court’.Footnote 23 The exact impact of any of the Trust Fund’s supported projects is, of course, difficult to measure and Schabas points out that the ‘the word “benefit” is probably being used rather loosely. It might for example include potential listeners of the community radio station’.Footnote 24
Another concern is that the selection of intermediaries is far from transparent. While the Board of Directors explains that they choose intermediaries ‘in consideration of their specialization, experience, local presence and knowledge of local conditions, and their technical expertise’,Footnote 25 it is not clear how specific programmes are selected. It set out:
Through formal surveys, questionnaires, evaluation of existing assessments, and the simple methods used to collect information such as talking to people, walking through communities and observation, the Trust Fund has collected all information needed for being able to program how the “other resources” could be used for the benefit of victims of any crime within the jurisdiction of the Court.Footnote 26
Yet, it is unclear how this information is used, what the selection criteria are, and how any criteria have been chosen. In addition, there is hardly any oversight of the judges over the general assistance mandate. Neither the Rome Statute nor the Trust Fund Regulations clarify the relationship between the Trust Fund’s general assistance mandate and the judicial procedure of the Chambers. According to Regulation 50(a)(i), the Trust Fund is seized when ‘the Board of Directors considers it necessary to provide physical or psychological rehabilitation or material support for the benefit of victims and their families’.Footnote 27 The judges have no say in the question of who should benefit from the assistance, which projects should be funded, or ‘whether the activities and projects identified by the Board of Directors are the most appropriate, timely and effective responses to the needs identified, and/or whether the intended beneficiaries are the most deserving’.Footnote 28 There is also no judicial review of the identification of victims or selection of implementation partners. Thus, while under the reparation mandate, the Trust Fund is simply implementing a Court order, under the general assistance mandate it works nearly completely independently from the Court.Footnote 29
At the same time, the link of this mandate to the Rome Statute is rather tenuous. The legal basis commonly given for the general assistance mandate is Rule 98(5) RPE,Footnote 30 which reads: ‘[o]ther resources of the Trust Fund may be used for the benefit of victims subject to the provisions of article 79’, in connection with Article 79(1) Rome Statute which reads ‘for the benefit of victims of crimes within the jurisdiction of the Court’.Footnote 31 Article 79 does not, however, mention any assistance for the victims beyond that of the reparation award. Furthermore, this Article is located in Part VII of the Rome Statute, which is entitled ‘Penalties’ and consequently must therefore assume a connection between the Trust Fund activities and a criminal conviction. From reading these provisions in context it becomes clear that initially the Trust Fund was created solely to implement and complement reparation orders, and not to offer assistance beyond a criminal conviction. The idea of an additional assistance mandate was discussed at the first meeting of the Board of Directors (20–22 April 2004) and submitted in their Draft Regulations.Footnote 32 The Assembly of State Parties approved an amended version on 3 December 2005 and the new Regulation 50(a) allows the Trust Fund to use their resources outside reparation orders.Footnote 33 Neither the Board’s draft nor the final regulations mention the expression ‘general assistance’ or ‘second mandate’, but this term is now routinely used by the Trust Fund.Footnote 34 The Assembly of State Parties has the right to amend the Rome Statute and therefore also to extend the mandate of the Trust Fund beyond its initially envisioned role. Such extension of the Trust Fund, however, impacts negatively on the Court and its legitimacy, as argued in this article. The following two sections will examine the problems of the Trust Fund itself, before addressing the various ways in which the Trust Fund might affect the legitimacy of the ICC.
3. The general assistance mandate
Before exploring the problem of legitimacy, we first have to ask whether the general assistance mandate is actually capable of overcoming the reparation gap by comparing the capability of the Trust Fund to raise sufficient funds with the costs of running the general assistance mandate.
3.1 Weak fundraising
The first problem is that the intended process of fundraising for the Trust Fund has proven to be inadequate to raise sufficient funds. Initially, it was envisioned that the Court could order money and property that had been collected through fines or forfeitures to be transferred to the Fund.Footnote 35 The expectation that some defendants (for example, warlords in the mineral rich Democratic Republic of Congo)Footnote 36 would have access to considerable assets proved, however, to be wrong and to date the Trust Fund has received no funds from fines or forfeitures. The only defendant where considerable assets were found, was Jean-Pierre Bemba Gombo (now acquitted) who had initially been found ineligible for legal aid due to his considerable wealth.Footnote 37 Indeed, over €5 million in assets had been seized,Footnote 38 but by the end of 2014, he had already spent €2,799,380.94 on legal fees.Footnote 39 Fortunately, the Fund is permitted to receive voluntary contributions from governments, organizations, individuals, corporations, and other entities.Footnote 40 This means, however, that the Trust Fund is dependent on fund-raising, a task given to the Trust Fund’s Board of Directors.Footnote 41
The Board has five directors who are elected by the Assembly of State Parties for three years.Footnote 42 They are acting in their personal capacity on a pro bono basisFootnote 43 and report to the Assembly of State Parties.Footnote 44 The NGO Redress expressed that the ‘profile of the Board Members provides a unique opportunity to draw greater attention to the plight of victims and family members within the Court’s jurisdiction’.Footnote 45 The election of five prominent directors, however, turned out to be more challenging than expected. Although the period of nomination for the first Board in 2003 was open for nearly four months, the Assembly of State Parties struggled to find enough candidates.Footnote 46 Embarrassingly, at its first meeting, the Assembly had to issue an urgent additional invitation for nominations before the closing of the session. Consequently, the nomination was opened for another three days from 8–10 September 2003,Footnote 47 giving the Assembly hardly any time to vet, consider, and discuss any of the candidates before the election on 12 September. One of these last-minute candidates was Her Majesty Queen Rania Al Abdullah, the wife of the childhood friend of then Assembly of State Parties’ President Prince Zeid Raad. This potential conflict of interest was probably outweighed by the urgency to find possible candidates and it might not be too farfetched to presume that Queen Rania was asked by her husband’s friend to help out as a matter of urgency. Finding Directors continues to be a problem as the number of extension of nominations of candidates in all but one election shows.Footnote 48 In 2006, for example, the deadline for nomination had to be extended five times.Footnote 49
It was expected that the Board members would use their high profiles to lobby for substantial voluntary contributions. Unfortunately, this hope was not fulfilled. While the first Board included two Nobel Peace Prize winners (Archbishop Desmond Tutu and Óscar Arias Sánchez), looking at all the directors who have served the Trust Fund since, the number of recognizable names is rather small. Most prominent are possibly Vaira Vīķe-Freiberga, former president of the Republic of Latvia and UN Special Rapporteur on the situation of human rights in the Republic of Croatia, FRY, Bosnia and Herzegovina and FYROM and runner-up to the Finish Presidential Election, Elisabeth Rehn. Otherwise the Board consists mainly of former ministers or deputy ministers, ambassadors, human rights and policy advisors, and academics. While no doubt highly qualified and prestigious in their own field, one cannot help suspecting that they were chosen because of their willingness to undertake this role rather than their prominence in the international community and fundraising profile.Footnote 50 There is also disappointingly little activity to be noted. The Board is only required to meet as a minimum once a year, and so far the Board has never exceeded this minimum. Even at the opening meeting, only three of the five members could attend this significant event. While it can be understood that the Assembly of State Parties chose a structure that chooses high profile membership rather than full-time employees, it seems that the role of director of the Trust Fund barely features among the other commitments of the Board members.
Unsurprisingly, success in raising substantial funds has been rather disappointing. Considering the extensive needs for funds for both the reparation awards and the general assistance mandate, the Trust Fund has so far managed to attract only a limited number of donors, consisting mainly of Western European countries.Footnote 51 The current average of annual voluntary contributions to the Trust Fund is around €5 million.Footnote 52 From 1 July 2018 to 30 June 2019, the TFV received €3,864,112.33 states’ contributions ranging from €5,000 from Portugal to €1,000,000 from the Netherlands.Footnote 53 The states’ contributions compare to just under 2.6 per cent of the annual budget for the ICC.Footnote 54 One could argue that while the Assembly of States Parties has approved an increase of the annual ICC budget of 0.72 per cent in 2020,Footnote 55 an extra 2.6 per cent in voluntary contributions is a substantial amount. On the other hand, in comparison to the UN Development Programme Trust Fund for Rwanda which received between 1995 and 1999 $119,536,758 in donations, this sum which also covers donations for reparations seems minute. In addition, some of the contributions to the Trust Fund are earmarked for reparations rather than the general assistance mandate, such as Germany’s contribution of €300,000 in 2018.Footnote 56 To operate the general assistance programme with this comparatively small amount is only possible because so far it operates the assistance mandate in only three out of 13 situations currently being investigated by the ICC.Footnote 57
3.2 Costly processes
The limited success in fundraising is contrasted by the high running costs of the Trust Fund which keep growing.Footnote 58 The ICC 2020 budget includes €3,226,100 for the Trust Fund,Footnote 59 which is an increase of 71.2 per cent in only five years.Footnote 60 Non-staff resources amount to €646,000 and cover travel, hospitality, contractual services, training, consultants, general operating expenses, supplies, materials, and furniture and equipment.Footnote 61 While individual items are not listed in the 2020 budget proposal, in 2019 they included a staggering €63,400 for annual training (with an increase of 96.9 per cent from the previous year)Footnote 62 and €120,000 for consultants.Footnote 63 The budget for contractual services such as printing, development of fundraising events and materials, external auditor’s fees, SAP GM support, translation, and Board meeting costs is €147,000.Footnote 64 Indeed, in the first ten years, the running costs of the Trust Fund equalled more than half of the voluntary contributions. Until 2010, the annual contributions were even lower than the annual running costs.Footnote 65 If it had not been for the fact that the running costs were covered by the ICC general budget,Footnote 66 rather than the voluntary contributions, the fund would not have been viable at all. In the end, both the ICC budget and the voluntary contributions are mainly paid for by national states and the fact that this money is channelled into different budgets should not gloss over the fact that running the Fund is extremely expensive compared with the amount of funding it receives.Footnote 67
What may come as a surprise is that large amounts of the Trust Fund’s costs are used up for the general assistance mandate. The reason for this is that its core task, namely allocating voluntary state contributions to individual projects, carries huge administrative costs. In order to guarantee procedural fairness, transparency, and accountability a complex process is required encompassing:
-
- establishing project granting and procurement procedures;
-
- project proposal;
-
- budgeting and reporting formats;
-
- project design and planning methodologies and field assessments;
-
- financial management processes including the design and establishment of SAP Grants Management module and modifications for IPSAS compliance;
-
- development of project contract and donor agreements;
-
- design of a Trust Fund logo, branding, website, and video;
-
- production of bi-annual public programme reports;
-
- drafting of donor proposals and the launch of the first global donor appeal in 2008;
-
- and the management of representational events including the Rome Statute Review Conference in Kampala in 2010 and high-level VIP missions with States Parties, CBF members and ICC Principals to northern Uganda and DRC in 2010 and 2013.Footnote 68
Furthermore, all implementing partners are subjected to a capacity needs assessment.Footnote 69 An additional cost factor is public relation work which includes:
developing a communication and outreach strategy for the Trust Fund’s mandates; greater coordination with the ICC PIDS team in each situation, and integration into the ICC’s outreach and communication strategies; and/or through the assignment of programme communication staff or contractors specifically for the Trust Fund in each situation.Footnote 70
Another aspect of the immense costs of accountability is the extensive review of their own procedures. In order to review the impact of their rehabilitation assistance, the Trust Fund conducted an extensive survey in 2010/2011, which included interviews with 2,500 victim beneficiaries.Footnote 71 The claim that lessons learned are helpful for later implementation of reparation awards is questionable. One such lesson, for example, was:
Violence, that is, impacts men and boys differently than it impacts women and girls; and the findings suggested that among the Trust Fund’s beneficiaries, female victims had experienced more severe psychological and social consequences. This, in turn, showed that women approach the issues of justice, rehabilitation, reparation and reconciliation differently than men.Footnote 72
Surely, this insight is far from new. If the aim of external reviews is to learn more about the impact of crimes and of various rehabilitation measures, this would be achieved more easily by an established research centre, which could conduct long-term detailed and widespread empirical research.
3.3 Interim conclusion
The weak fundraising of the Board of Directors illustrates that the attachment of the Trust Fund to the ICC is not sufficient to raise substantial funds. Even with the recent acquittals of Jean-Pierre Bemba, Laurent Gbagbo, and Charles Blé Goudé, the demands on reparations must be expected to rise sharply in the coming years. In 2017, the Chair of the Board of Directors, Motoo Noguchi, estimated that in the next four years the Fund would need €30 million for reparations aloneFootnote 73 while the Court reminded the Fund that its responsibility ‘is first and foremost to ensure that sufficient funds are available in the eventuality of a Court reparation order’.Footnote 74 The Trust Fund will struggle to raise sufficient funds to fulfil its reparation mandate and complement reparation orders, let alone to raise enough money to fund further projects as part of the general assistance mandate. Indeed, in 2019 the Assembly of States Parties warned that ‘there is a rapidly widening gap between expected annual revenue and the TFV’s resource need’.Footnote 75 At the same time, the operation of the general assistance mandate is exceptionally expensive. While it is essential to establish robust processes to run the general assistance projects with transparency and accountability, all these procedures create a costly administrative layer between donors and implementing partners, which would not be necessary if the functions of the general assistance mandate would be fulfilled by existing national or international organizations. In addition to this, as will be shown in the following section, the general assistance mandate is also undermining the core functions of the Court and thus undermining its legitimacy.
4. The general assistance mandate and the legitimacy of the ICC
Like other international criminal tribunals, the ICC can be described as a limbless giantFootnote 76 who is dependent on states not only to fund the Court but also to support the investigation, protect witnesses, arrest and surrender suspects to the Court, and provide prison space for convicted offenders. Indeed, the Court cannot operate without the goodwill of its many different stakeholders, including the states parties, UN member states, affected communities, individual victims, human rights NGOs, regional organizations such as the AU, and the international community as a whole. The strongest asset the ICC holds for securing this support is the moral power of its high aspirations and the trust in its fair procedures and judgments. Only in as much as the Court can demonstrate legitimacy of its actions and decisions, will states see themselves bound to provide the Court with the support it needs, human rights groups aid the court with evidence gathering, victims come forward as witnesses, and communities accept the judgments. Legitimacy and justice are interwovenFootnote 77 and as De Hoon states, ‘criminal law trials, function only by the grace of legitimacy’.Footnote 78 Indeed, the ICC ‘must work continually to build legitimacy and evidence its existence to the international community’.Footnote 79
Nevertheless, during its short history the ICC has already faced a number of attacks on its legitimacy,Footnote 80 being accused of political choice of conflicts in which to open investigations, bias selection of defendants, lengthy procedures, and low sentences to name but a few. The main crisis of legitimacy was caused by the arrest warrant of the sitting Head of State in Sudan and later, the indictments of the President and Deputy President of Kenya which led the African Union to contemplate a mass exodus from membershipFootnote 81 and two states to withdraw from the ICC.Footnote 82 Vasiliev states that ‘legitimacy-related anxiety is like a dark cloud hovering over the project [of international criminal justice]’,Footnote 83 and it is no exaggeration to speak of a crisis of legitimacy for the ICC.Footnote 84 Considering the importance of legitimacy as an asset of the Court on the one hand and the manifold challenges to its legitimacy the Court is currently facing on the other, it is even more surprising that the general assistance mandate of the Trust Fund has not been scrutinized as to its impact on the ICC. As will be argued in this section, in addition to the running costs of the mandate, the general assistance mandate undermines the legitimacy of the Court as a whole and is thereby further threatening the already weak standing of the ICC.
4.1 Legitimacy in international criminal law
The concept of legitimacy in international law is widely discussed in the literatureFootnote 85 and has fittingly been described as a ‘fluid, adaptable and relative notion which is related to legality, justice and fairness but more easily perceived than measured’.Footnote 86 For the purpose of this article it suffices to use Suchman’s general description of legitimacy as ‘a generalised perception or assumption that the actions of an entity are desirable, proper, or appropriate within some socially constructed system of norms, values, beliefs and definitions’.Footnote 87 Within the debate, the scholarship offers various classifications of aspects of legitimacy,Footnote 88 but the main distinction commonly made is between normative and sociological legitimacy.Footnote 89 Normative legitimacy is divided into source legitimacy and process legitimacy. Source legitimacy evaluates whether the court derives the authority to judge individuals from a legal authority.Footnote 90 Process legitimacy asks whether the court follows legal procedure and due process principles.Footnote 91 Luban even claims ‘that the legitimacy of international tribunals comes not from the shaky political authority that creates them, but from the manifested fairness of their procedures and punishments’.Footnote 92 It is, therefore, essential that the court works within generally recognized principles of due process.Footnote 93 Sociological legitimacy (also labelled descriptive, or empirical),Footnote 94 on the other hand, is based on popular attitudes and perceptions about the court and its authority.Footnote 95 While normative legitimacy refers to the right to exert authority, sociological legitimacy ‘entails the belief of the right to rule’.Footnote 96 Sociological legitimacy is ‘rooted in an audience’s shared belief that the actions of an entity are desirable, proper or appropriate within some socially constructed system’.Footnote 97 This means that the court’s legitimacy is not solely based on how it has been established and how it conducts its procedures but also on its ‘resonance with the shared identity of the audiences they address’.Footnote 98 Both process and sociological legitimacy are closely linked, as legitimacy can only be achieved when the fairness of procedures is also comprehended by the stakeholders. As Clark points out ‘courts must not only be legitimate but must also be seen to be legitimate, and assessment of their legitimacy will critically centre on the extent to which they are delivering justice’.Footnote 99 Langvatn and Squatrito even argue that ‘a normative conception of legitimacy should include a certain degree of descriptive legitimacy as a necessary criterion’.Footnote 100 This section will argue that the general assistance mandate of the Trust Fund poses the risk of undermining both the Court’s normative (in form of process) and sociological legitimacy.
It is the author’s view that both normative and sociological legitimacy require that the Court conducts fair trials. This understanding has been expressed by various international courts and tribunals themselves.Footnote 101 Former judge and second Vice-President of the ICC Hans-Peter Kaul declared that ‘[f]airness of the proceedings is a cornerstone of the Court’s work which the Judges of the ICC safeguard with great care’Footnote 102 and the ICC describes itself as the ‘custodian of a fair trial’.Footnote 103 The ICTY explained that the right to a fair trial goes beyond protecting the fundamental rights of the defendant and in addition is ‘a fundamental interest of the Tribunal related to its own legitimacy’.Footnote 104 Described as ‘a key element in enhancing the process legitimacy of international criminal courts and tribunals’Footnote 105 some academics even argue that it is one of the most important factors of the ICC’s legitimacy.Footnote 106 International criminal justice has many different aims and objectives which go beyond the trial,Footnote 107 and a fair trial alone is not sufficient to achieve legitimacy. Without a fair trial, however, no international criminal court can claim legitimacy, no matter how legitimate other aspects are perceived to be. Only through fair trials can the Court achieve its aspirations of promoting reconciliation, restoring peace, preventing revisionism, and deflecting denial of crimes through producing a historical record.Footnote 108 The following sections will demonstrate how the general assistance mandate of the Trust Fund potentially undermines both the process and sociological legitimacy of the Court.
4.2 Impact on the presumption of innocence
Struett explains that the Court’s legitimacy ‘ultimately depends on its capacity to persuade observers that the exercise of its powers to investigate, prosecute, and punish violations of international criminal law is consistent with the application of rules that are universal in nature’.Footnote 109 One of these universally accepted core principles of a criminal trial is the presumption of innocence, enshrined in all major human rights and criminal procedure instruments.Footnote 110 A criminal court facilitating tangible aid to victims before having established that any crime has been committed at all, on the other hand, is difficult to reconcile with the presumption of innocence.Footnote 111 This issue was discussed in 2008 when the Trust Fund notified the Pre-trial Chamber that it intended to start general assistance activities in the DRC. The Chamber rebuffed any concerns arguing that: (i) the investigation in the region had already been initiated; (ii) that the proposed activities were not related to any of the court proceedings; and (iii) that the Trust Fund’s notification of planned activities had no impact on the outcome of any specific criminal proceedings.Footnote 112
This line of argument has to be rejected. First of all, the fact that an investigation has started does not diminish the importance of the presumption of innocence. The Prosecutor of the ICC has the duty of gathering both incriminating and exonerating evidence.Footnote 113 Thus, even though an investigation has been opened, this does not presume any determination that a crime under the Court’s jurisdiction has been committed. Approving victim support, on the other hand, does necessarily presuppose that there are indeed victims of crime. Surprisingly, the Court states that the:
[u]sual role of the defence is to demonstrate that the Prosecution has failed to prove the culpability of the accused for specific crimes for which he or she is charged. Consequently, the possibility of prejudice is entirely context and case specific, based upon the particular charges and evidence put forward.Footnote 114
This argument stands on weak grounds, as it is, of course, not the role of the defence to disprove the prosecution’s case. On the contrary, the burden of proof lies solely on the Prosecutor who must prove beyond reasonable doubt that all elements of crime are present.Footnote 115
With regards to the second argument, that there is no connection between the Trust Fund sponsored activities and court proceedings, one must not forget that in the end the Trust Fund is part of the ICC. Thus, any activity helping alleged victims demonstrates that parts of the Court, other than the Office of the Prosecutor, have already concluded that crimes under the jurisdiction of the Court have been committed. For example, where a project offers supports to victims of sexual violence under the Trust Fund’s general assistance mandate, it is assumed that there are victims of international crimes. While there is usually ample evidence that people in the areas have experienced horrendous suffering, these acts could easily lie outside ICC jurisdiction. In Lubanga, for example, the defence counsel argued that some of the alleged acts fell outside the temporal jurisdiction of the Court.Footnote 116
This links to the third argument, namely that such projects have no impact on the outcome of individual cases and therefore pose no risk of prejudice against individual defendants. One has to remember, however, that acts such as murder, rape or destruction of property are not themselves crimes under Article 5 of the Rome Statute. Such acts only constitute a crime under the jurisdiction of the Court if they meet the very high threshold of genocide, war crimes or crimes against humanity. Thus, even though individual Trust Fund activities might not be directly related to specific court proceedings, the acknowledgement that the beneficiaries are victims of crimes under ICC jurisdiction presumes that these contextual elements are present. The existence of a widespread or systematic attack against a civilian population according to Article 7(1), for example, is essential for all crimes against humanity charges, even if the Trust Fund projects do not ‘expressly or impliedly point to the particular guilt of an accused in respect of actual charges in the indictment’.Footnote 117 The defence in a specific case might, for example, argue that the accused is not guilty of a crime against humanity because the prosecution cannot prove that the act in question has been part of a widespread attack. Such argument would be heavily undermined where a part of the Court, namely the Trust Fund, has been operating the general assistance mandate in the relevant area for a number of years and provided thousands of individuals with support. Thus, even though not related to any specific case, the general judgement of the Trust Fund that the beneficiaries are not just victims of a crime but indeed victims of a crime under the Rome Statute can have a direct effect on an individual case. It, therefore, undermines the presumption of innocence in all specific cases where the general elements are in question. In contrast, the ICTY showed much more caution when it decided that even a general statement by the Registry that a crime had occurred could have the potential to impact on the fairness of the trial where a defendant challenges the existence of that crime.Footnote 118 To offer general assistance before a criminal conviction prejudices, or, at the very least, creates the perception of prejudice, in all cases in the same situation. This problem is exacerbated by the fact that there are no standards or guidelines to clarify how the Trust Fund establishes whether a crime under the jurisdiction of the Court has occurred and whether the beneficiaries are victims of this crime and not some other atrocity.
4.3 Witness credibility
A further concern is the relationship between the different roles a victim might have at the Court. So far, there is no provision dealing with the question of how to deal with a Trust Fund beneficiary who is later called to give testimony as a witness. Even without the involvement of the Trust Fund, the dual status as witness and victim has been proven to be problematic. In Lubanga for example, the Trial Chamber withdrew the victim status from six witnesses whose evidence was found unreliable.Footnote 119 The causes of ‘contradictory’, ‘overly inaccurate’, and ‘excessively imprecise’Footnote 120 statements often lie in a lack of witness scrutiny by the prosecution and the overreliance on intermediaries.Footnote 121 The question of witness reliability will continue to be exacerbated if victims might be influenced or at least seen to be influenced by the fact that they have been drawing tangible benefits from the Court before giving testimony. Of course, most prosecution witnesses will be interested in a conviction, especially in the ICC where there is a chance of receiving reparations. However, unlike other victims who might benefit from a reparation order after a conviction, Trust Fund beneficiaries will potentially have already received material support before they are asked to give testimony, sometimes for many years. The same concern arises for NGOs who are working on general assistance mandate projects. The Office of Public Counsel for the Defence expressed the concern that NGOs who are receiving funds from the Trust Fund in order to implement projects of the general assistance mandate might later be asked by the Prosecutor to testify before the Court.Footnote 122 Having previously benefited from the Trust Fund would undermine the credibility of the testimony of the NGO.
In part, this problem can be overcome by Article 69(4), which gives the Court discretion to reject evidence as inadmissible where it might cause prejudice to ‘a fair trial or to a fair evaluation of the testimony of a witness’.Footnote 123 There are so far, however, no criteria to help the Court to evaluate a possible conflict between participation in the general assistance mandate and giving testimony before the ICC. Moreover, where the credibility of a testimony of a victim or an NGO is tainted because they have received money or other benefits from the Trust Fund, this means that the Prosecutor might lose a valuable witness. Since the Trust Fund begins operating in situations irrespectively from specific cases, there is no possibility for either the Prosecutor or the Trust Fund to identify possible overlaps in advance. Furthermore, even where it could be anticipated that an individual or an organization might be called later as witness, it would be difficult to deny them access to the general assistance mandate simply for this reason.
4.4 Wider impact on court proceedings
In addition, there are a number of ways in which the general assistance mandate could impact negatively on both international and national proceedings. First of all, the involvement of the Trust Fund before a conviction might constitute a direct problem in instances where a state or the accused challenges the admissibility of a case under Article 19(2) of the Rome Statute. While the general mandate is not linked to specific cases, so far, the ICC has dealt only with a handful of cases in each situation. Thus, it is not unlikely that a situation arises long after general assistance has begun in a region, there will be one or two defendants and they might challenge the admissibility of their case. Since the ICC has no intention to provide support to victims in cases which are inadmissible before the Court, the previous involvement of the Trust Fund could then be seen as the ICC having already pre-determined that the cases are admissible. If the Court, on the other hand, decides that the case is inadmissible, the question arises as to what happens to the existing general assistance programmes. Either way, the impartiality of the Court will be tainted. This scenario cannot be avoided, since an admissibility challenge in an individual case might occur only years after the ICC opened investigation into this situation and the Trust Fund began to operate the general assistance mandate.
Likewise, the second aspect of admissibility, namely the requirement of gravity, could be prejudiced.Footnote 124 A large number of beneficiaries of the assistance programmes could influence the Court to find gravity more easily, or at least to be seen to be influenced this way. The Trust Fund’s decision to start general assistance in a certain area demonstrates that a section of the Court considers that there is sufficient gravity, long before the judges had the opportunity to make such finding. None of the admissibility challenges, so far, have included concerns regarding the general assistance mandate, but the more the general assistance mandate is run, the more likely will it be that these concerns regarding complementarity and gravity will be raised.
A further, more indirect, obstacle to carrying out its criminal procedures is the cost of running the general assistance mandate as discussed above in Section 3. It has been shown that the general assistance mandate has high running costs without the Trust Fund being able to replenish the Fund’s resources sufficiently through fundraising. Any drainage of the already scarce resources of the Court is undermining its ability to fulfil its core functions to its best abilities and thus indirectly weakening the Court’s legitimacy. Buchanan and Keohane warn that one must not confuse legitimacy with efficiency but agree that ‘if an institution steadfastly remains instrumentally suboptimal when it could take steps to become significantly more efficient or effective, this could impugn its legitimacy in an indirect way’.Footnote 125 Bassiouni too, sees a clear link between management and costs of an institution and its legitimacy:
The success of the ICC will not be predicated on the simple arithmetic of case numbers but on the regular flow of cases and more particularly, on the fairness, objectivity, and effective management and costs of the institution. This is what will earn the ICC international credibility and legitimacy.Footnote 126
In addition, the general assistance mandate has the potential of having a negative impact on the national criminal procedures, which the ICC is supposed to complement.Footnote 127 In view of the very limited number of selected investigations by the ICC, there might well be national investigations alongside the ICC procedures. The Trust Fund might therefore act in areas connected with domestic procedures without the national authorities being aware of its involvement.Footnote 128 This could easily lead to a domestic criminal case being conducted without the judges, the prosecution or the defence being aware that a witness is a beneficiary of the ICC assistance mandate.Footnote 129 This fear is justified as the Trust Fund is reluctant to reveal details of individual programmes in order to protect the beneficiaries and implementing partners. Despite these concerns, there is no provision for states parties to reject or at least offer observations regarding the Trust Fund undertaking activities on their territory.
Another way in which the general assistance might interfere with domestic procedures is that it undermines the attraction of national reparation schemes. In criminal proceedings, reparations not only serve as a way to compensate victims for their suffering but are also used as a means to encourage victim participation.Footnote 130 Indeed, it is not unknown for states to make compensation conditional on the victim first reporting the alleged crime to the relevant authorities.Footnote 131 In cases related to armed conflict, where witness statements are often the main form of evidence but victims put themselves and their loved ones into considerable danger when testifying, such incentives are even more important. This strategic use of reparations will, however, be undermined where victims are already benefitting from the general assistance mandate without any need to participate in any criminal procedure. The same problem might also affect the willingness for victims to testify at the ICC in the future.
4.5 Diverting from lack of sociological legitimacy
The final major legitimacy issue is the overlooked interplay between the general assistance mandate of the Trust Fund and the justice mandate of the Court. While it has been argued above that a fair trial is an indispensable prerequisite for the Court’s legitimacy, there is a distinction between fair trial and justice. Indeed, it has been argued that ‘[t]he “justice” of the international criminal trial is not generally measured by the fairness of the proceedings, but by the favourable outcome from the victims’ perspective’,Footnote 132 and this opinion is not only shared by victims but also by those working in the Court.Footnote 133 Fischer claims that ‘[t]he only measure for the success of the Victims’ Trust Fund, and indeed the ICC itself, is in its ability to provide just restitution for victims’.Footnote 134 While the ICC is expected to serve many different aims, one must not lose sight of the fact that its first and foremost mandate is to bring perpetrators of the gravest crimes to justice,Footnote 135 to end impunity,Footnote 136 and to do so through a fair trial.Footnote 137 So far, the Court has a poor track record in this regard. At the time of writing, only five defendants are in custody of the Court. Eight defendants have had their case against them closed and a further 12 defendants are still at large. Out of the cases that reached the trial stage, four resulted in acquittals.Footnote 138 This means that after 18 years of existence, only four out of 38 surviving indictees have been convicted for crimes under Article 5.Footnote 139 While acquittals and case withdrawals demonstrate the adherence of the Court to fair trial principles, the fact is that in the end only a very small number of perpetrators have been brought to justice so far.Footnote 140 From the point of view of the millions of victims who have suffered in the conflicts before the ICC, this is a rather disappointing result.
At the same time, the ICC uses the general assistance mandate of the Trust Fund to promote the Court as having brought relief to the victims. On the ICC website the Trust Fund is even portrayed as one of the three pillars of the ICC (the Court organs and the Assembly of States Parties being the other two),Footnote 141 playing a main role in promoting the Court. Thus, the general assistance mandate is used to counter-balance the Court’s deficiency of sociological legitimacy by glossing over its shortcomings in its justice mandate. The Court should, however, not be able to conceal its failure to provide more justice by bringing more perpetrators to justice behind the financial assistance channelled through the Trust Fund. There is a real danger that victims’ support for the Court is gained through the promise of tangible assistance instead of earning it through fulfilling its justice mandate. Outside the context of the Trust Fund, the Pre-Trial Chamber itself pointed at the close link between victims’ disappointed expectations in the Court and the Court’s ability to work. It warned recently of actions of the Court that:
far from honouring the victims’ wishes and aspiration that justice be done, would result in creating frustration and possibly hostility vis-a-vis the Court and therefore negatively impact its very ability to pursue credibly the objectives it was created to serve.Footnote 142
Rather than buying victims’ good will through funding support projects, the Court needs to focus on its core function and do everything it can to raise the sociological legitimacy of its justice mandate. It is not, and never has been, the role of a criminal court to offer general assistance. Distributing money donated from a handful of states to NGOs in the field is not part of the functions of a criminal court.
5. Conclusions
The general assistance mandate reflects the acknowledgement that retributive justice, in the form of the imprisonment of a handful of offenders, is not enough to restore the victims’ dignity and rebuild their devastated lives. Even the innovative approach of reparation orders against individuals will never be sufficient to address the manifold needs of thousands of victims. It has been shown in this article that the general assistance mandate, on the other hand, is not in the position to fill this gap, not only because of its own structural weaknesses but moreover due to the negative impact it has on the criminal procedures of the Court.
It could be argued that the general assistance mandate reflects the shift in recent years in international criminal law ‘from the rights of the accused to the symbolic objectives of the international community and more particularly the interests of victims’.Footnote 143 It is clear that in the understanding of the Court, a fair trial does encompass more than only protecting the procedural safeguards of the accused, and that the role of the judges is to balance the interests of the different protagonists including the victims.Footnote 144 Indeed, the victim is understood to be at the heart of ICL.Footnote 145 But this argument overlooks the fact that there must be a clear distinction between victims as protagonists of a trial and victims in the sense of beneficiaries of the Trust Fund’s general assistance mandate. This article does not advocate limiting rights of the former, nor does it deny that the survivors of mass atrocities are in dire need of concrete support. What is argued here is that any support coming from the Court needs to be limited to those victims who have been identified by the Court as victims of the specific case. The general assistance mandate on the other hand extends the concept of victim to all those who have severely suffered in the atrocities. This extension which gives non-protagonists support from the Court and which has a negative impact on many aspects of the procedure, as shown above, is highly problematic not at least because the selection of these beneficiaries is completely outside the control of the judges. Moreover, there is an alarming lack of transparency in the identification and selection of the beneficiaries. The Office of Public Counsel for the Defence (OPCD) criticizes the Trust Fund for not revealing ‘any formula or criteria, which were used to verify factually and legally that the persons receiving assistance suffered harm as the result of a crime under the Rome Statute’.Footnote 146 The Fund does not even reveal the exact crimes the beneficiaries allegedly have suffered from, other than ‘crimes within the jurisdiction of the court’. Moreover, it is not clear whether, or how, the Trust Fund assesses whether the victims have already received or will receive compensation from the national authorities. Hence, the selection of beneficiaries is based on information not verified by the Court, nor is it based on the Court’s evidentiary threshold of ‘beyond reasonable doubt’.Footnote 147 This lack of transparency can be partially explained by security concerns. Being associated with a body of the ICC poses a security risk both for the beneficiaries as well as the implementing partners.Footnote 148 The Trust Fund acknowledges that in the DRC this problem ‘has contributed to a low visibility of the Trust Fund in local communities, as well as to a lack of knowledge with beneficiaries about the legal and institutional framework of the support they are receiving’.Footnote 149 Nevertheless, the security risk only explains the lack of transparency with regards to the identity of beneficiaries and implementing partners. It does not explain the obscure selection procedures or the lack of general information available to the public. Indeed, it is increasingly difficult to access information about the work of the Trust Fund with respect to the general assistance mandate. The last Strategic Plan that was made publicly available was for the years 2014 to 2017 and there is only one edition of the so-called newsletter available on the website.Footnote 150 While the Trust Fund’s website has a contact email address inviting queries, none of the numerous requests for information by this author have been replied to or even acknowledged. The information on the website is often scarce and not regularly updated.
A further drawback of the general assistance mandate is that the link between general assistance and the ICC is not adding any value. The Trust Fund’s claim that it is ‘a source of operational experience and knowledge about the particularities of providing assistance to victims under conditions of conflict, stigma and chronic vulnerability’Footnote 151 is far from convincing. First of all, the general assistance mandate operates in only a few situations and not necessarily in those where a reparation order is later given. Furthermore, as the general assistance mandate is run by intermediaries, the Court could easily refer directly to the data available through the operating NGOs. The Trust Fund argues that ‘with its non-Court ordered general assistance, the TFV has an established presence on the ground and is well placed to implement such awards’,Footnote 152 but there is no explanation of exactly what special knowledge or understanding it has gained through its ‘presence’. Indeed, looking at the programmes that different NGOs are running, there is nothing the Trust Fund does that would require a link to a criminal court. The Trust Fund is, for example, not privy to any information or insights of the Court other than what is publicly available. Nor is there any reason to believe that the Trust Fund attracts more money because of its link with the Court. On the contrary, as seen above, a link with the Court actually hinders general assistance programmes in some situations because of security concerns. The Trust Fund admits that, because of its connection with the Court, ‘victims who will benefit from the specified activities of the Trust Fund would be endangered as seen as having contact with the Court’.Footnote 153 Indeed, in its first notification to the Court regarding the situation in Uganda, the Trust Fund repeatedly refers to the security risks for victims and the importance that the beneficiaries are not visibly linked to the Court.Footnote 154 In addition, the Trust Fund is increasingly outsourcing main activities of the general assistance mandate,Footnote 155 which begs the question as to what extent the Trust Fund itself is necessary.
While it is accepted that a wide needs-based approach is needed to alleviate as much suffering as possible and as fast as possible, this broad assistance cannot be part of a criminal procedure with the necessarily narrow remit of a criminal case. Indeed, one of the core principles set out in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power is that victim support should not depend on the perpetrator being convicted.Footnote 156 Hence, it is unsurprising that such an extension beyond the criminal case has not been envisioned at the Rome negotiations and cannot be found in either the Rome Statute or the Rules of Procedure and Evidence. It is therefore argued that, in light of the limited reach of the Trust Fund and the high running costs of the general assistance mandate on the one hand, and its negative impact on the ICC on the other, the work of the general assistance mandate should be separated from the Court and given to an external body. In the first place, this assistance should come from states since the suffering caused by mass atrocities goes beyond the victimization of individuals and includes the destruction of wider human and social relations.Footnote 157 The state is in a much better position to address the needs of a post-conflict society as a whole rather than a piecemeal approach of individual localized projects. For example, rather than providing training for rape victim counsellors, the state needs to rebuild the whole health, education, employment, and social benefit system. This reconstruction is a political question, not a judicial one, and therefore should be dealt with by the national government and not an international court. In the likely case that a state might not be willing or able to set up a comparable national body, it is then the international community who needs to step in to generate assistance to the victims. Indeed, at the Rome conference it was initially proposed to have the Fund administered by the UN to avoid the risk that it might impair the impartiality of the Court. It was, however, the disillusion with UN administration and the fear that this might lead to increased bureaucracy and less effectiveness that in the end the idea was dropped.Footnote 158 The flaws of UN administration are, however, no justification to give the task to a criminal court.
The ICC is only one part in the range of international and national responses to gross human rights violations. Due to its financial and jurisdictional limitations it will only ever be a symbolic court that can only deal with a small part of atrocities.Footnote 159 But this symbolic value depends on the legitimacy of the Court and its procedures. The general assistance mandate is not only a drain on scarce resources but more importantly, severely impacts on the legitimacy the Court. Needs-based assistance for victims and the justice mandate of the ICC are incompatible and therefore need to be institutionally separated.
