Abstract
In 2018, Prime Minister Trudeau made two announcements regarding the International Criminal Court, both, it seems, aimed at reinforcing Canada’s claim of human rights promotion and multilateralism: Canada declared Myanmar’s actions against the Rohingya people genocide and urged the United Nations Security Council to refer the situation to the International Criminal Court, and it joined a collective referral of the Venezuela situation to the Court. As public measures of support, these are positive developments for the International Criminal Court, which has been suffering poor public relations and challenges to its legitimacy. However, Canada could do more by better supporting the financial viability of the Court. Currently, it aims to increase the Court’s workload without supporting an increased budget, as reflected in Canada’s involvement at the December 2018 Assembly of States Parties meeting. A seemingly sure way to undermine the International Criminal Court would be to add to its workload without ensuring it has the financial resources to do the work.
In the latter half of 2018, a number of important events occurred in the relationship between the International Criminal Court (ICC) and Canada: Canada made two public statements calling for the ICC to increase its workload through the referral of two new situations, and Canada provided no support at the Assembly of States Parties (ASP) meeting in December for the budget that the Court claims it requires for its ever-increasing work. In September 2018, Prime Minister Justin Trudeau made two announcements regarding the ICC—both, it can be interpreted, aimed at reinforcing his claim “We’re back!” 1 as a country of human rights promotion and multilateralism. 2 On 26 September, in the wake of America’s renewed antagonism toward the ICC, Canada joined Argentina, Chile, Colombia, Paraguay, and Peru in a collective referral of the situation in Venezuela. 3 Trudeau, in a press conference at the 73rd session of the UN General Assembly, referred to Canada being “pleased to be joining with a broad number of other countries to continue to look for solutions[,]… including using the International Criminal Court.” 4 This came only a week after Canada declared Myanmar’s military actions against the Rohingya people a genocide, and urged the United Nations Security Council (UNSC) to refer the situation to the ICC. 5 As a public measure of support, these are positive developments for the ICC. As part of a larger objective for Canada to be seen as an international steward, and perhaps even leading to a Canadian non-permanent seat on the UNSC, such acts seem well placed. However, referring or asking for referrals to be made both signals faith in the Court and its work, and also calls for an increase in the Court’s workload, 6 thereby impelling a situation whereby the Court’s resources might be further strained. Unintentionally, Canada’s support of the ICC could inadvertently be undermining the Court’s ability to be effective in its work.
If Canada’s intention is truly to support the work of the Court, it has an opportunity to better do so. Canada has been a consistent public supporter of the Court since before its inception. It has also, however, been vocal in the past about the Court’s total budget, demanding (along with a small group of other states dubbed the “G7” among attendees of the annual ASP meetings of the ICC) that it adhere to a policy of “zero nominal growth” 7 (ZNG) just as the Court was ramping up its work. Although this demand did not result in the stagnation of the Court’s budget, such demands—especially from one of the Court’s top supporters—send a negative message about the Court’s work and fiscal responsibility. In recent years, and particularly since 2015 and the election of the Trudeau government, Canada’s public stance on the ICC’s budget has changed, but only insofar as it is not addressing the total budget at all now in official speeches. More is needed. If we want the Court to have a chance at being successful, it needs sufficient funds to do the work it is being asked to do, which includes an increased budget commensurate with an increasing workload. It also needs its top supporters to make public statements to this effect.
By analyzing the current threats to the Court’s real and perceived legitimacy—recognizing that these threats come as both political and financial challenges to the Court—we argue that as a country that positions itself as a leader in regards to its support of international institutions, and of the work of the Court in particular, Canada has a responsibility to publicly promote a new positive attitude toward the Court’s budget. Canada’s current brand of public support, which lacks concrete and substantial support for sufficiently funding the Court, risks having a negative effect on the ICC. A seemingly sure way to undermine the Court would be to add to its workload without ensuring it has the financial resources to do the work.
The referral and Canada’s support for multilateralism
The multilateral referral of Venezuela by Canada and its Latin American partners is the first referral of its kind in a number of ways. It is the first referral by a “coalition” of state parties. It is also the only referral of a situation occurring on the territory of a non-referring state party. The previous eight referrals were “self-referrals” (states referring situations within their own borders) or UNSC referrals. The Canadian motivations behind the joint referral seem to point toward reinforcing Canada’s role in international organizations and its desire to re-emerge as a leading promoter and protector of international institutions (perhaps as a show of ideology, but also to strengthen its bid for a UNSC seat).
The referral itself is based, at least partly, on a report documenting human rights abuses including torture, politically motivated disappearances, and extrajudicial executions. 8 The report was conducted by the Organization of American States (OAS) and its “panel of international experts,” including former Canadian justice minister Irwin Cotler. 9 It aimed “to determine if these criminal violations [which transpired in Venezuela] warrant[ed] further international criminal investigation by the ICC,” 10 and concluded that “the Secretary General [of the OAS] should invite States Parties to the Rome Statute to refer the situation of Venezuela to the Office of the Prosecutor of the ICC and to call for the opening of an investigation into the crimes against humanity set forth in this report, in accordance with Article 14 of the Rome Statute.” 11 The acts described by the report, if found to be committed as part of a widespread or systematic attack directed against the civilian population of Venezuela, constitute crimes against humanity under the Rome Statute of the ICC. Venezuela is a member of the Court, and therefore within its jurisdiction. It is against this backdrop that Canada joined five fellow members of the 35-member-strong OAS in referring Venezuela to the ICC.
Arguably, Canada’s role in the referral is not only following recommendations or supporting the multilateralism of the OAS, or even out of concern for justice and the people of Venezuela. It is also meant as a public show of support for the ICC itself. Sources from the Canadian government have claimed that Canada decided to participate in the joint referral in order to express support for the Court, especially at a time when the Court was facing political challenges. 12
As such, it may or may not have been an act meant to add momentum to the preliminary examination of the situation in Venezuela. Since February 2018,
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the situation in Venezuela has been the subject of an ongoing preliminary examination by the Office of the Prosecutor (OTP) of the ICC. By the date of the multilateral referral, ICC Chief Prosecutor Fatou Bensouda had yet to ask judges for permission to open a formal investigation. She responded to the referral by saying that the “preliminary examination will continue to follow its normal course, strictly guided by the requirements of the Rome Statute.”
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She goes on to state: A referral or an article 12(3) declaration does not automatically lead to the opening of an investigation. Should I, however, ultimately determine that the situation referred warrants an investigation in accordance with the statutory criteria, as a result of this referral, the Statute does not require the Prosecutor to seek authorisation from the Pre-Trial Chamber of the Court in order to proceed with an investigation. As a general matter, the receipt of a referral may expedite the process of opening an investigation only to the extent that judicial review of my decision would not be required under the Statute.
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It seems significant and beneficial to the Court that Trudeau’s government has worked hard to be seen as a leader in public support for its existence and its work. However, in some ways, despite Trudeau’s vocal public support of the ICC’s work, his approach to the Court risks being more damaging than is obvious or intended by Canada’s political support. While both political and financial support are necessary for the Court, they are different in important ways. And if the political support comes with an increased workload for the Court without additional funding, it may inadvertently have as much negative effect as positive if the Court is not supported to do the work required. We are not arguing that countries that refer situations to the Court should accompany their referrals with financial support. What we are arguing is that if Canada’s aim is to truly support the Court, and if it is intent on positioning itself as a global leader in supporting multilateralism in general and the ICC in particular, it should support the Court in a holistic way that does not risk undermining the institution it aims to support. This requires supporting an increased budget to match the increasing workload.
Challenges to the Court
As a treaty-based institution, the Court relies on its member states for everything from referrals and political support to the arrest of indictees and financial support. The Court is currently under pressure in a variety of ways. These pressures can be divided into two categories: political and financial. What can be deemed political pressure are the criticisms and concerns that arise from arguments about the Court’s legitimacy as an institution able to justly administer international law. Financial pressure felt by the Court comes from the budgetary restraints with which it contends and how they affect the Court’s ability to do the work it is tasked with doing. Naturally, the two are not entirely independent, since the effectiveness of the Court as well as the Court’s use of its budget can be fodder for political criticisms.
Political challenges
The ICC has come under sharp criticism in recent years. As one of the authors of this article argued elsewhere, the Court’s legitimacy is being challenged by its strained relationships with some of its member states, particularly those on the African continent. 19 Since 2016, three African states (Burundi, Gambia, and South Africa) and the Philippines have announced their intentions to withdraw, with Burundi and the Philippines leaving to date. Despite the more recent shifts of Gambia and South Africa to re-engage with the ICC, these developments signal significant strain within the Court’s relationships with previously supportive states. In addition, in 2018, the Court came up against renewed antagonism from the world’s hegemonic power and non-ICC-member, this time from US president Donald Trump’s administration. Recent threats by John Bolton, Donald Trump’s national security advisor, to ICC judges and lawyers further underscore the tension surrounding the Court. 20 Taken together, along with the growing sense that the ICC is ineffectual given its budget, prominence, and promise, the Court is facing some significant challenges to its real and perceived legitimacy. If these take root, they could sabotage the Court entirely.
Legitimacy refers to both the normative claim that the moral and legal foundation of the system is just (normative legitimacy), and the perception that the system is legitimate—the popular acceptance of a governing system (perceived legitimacy). The Court’s legitimacy is based not only on the legal system’s accordance with particular just foundations and principles, but also on the perception of legitimacy by both the international and the local populations. 21 While there are a number of criticisms levelled at the Court, the issue of head-of-state immunity and Articles 13(b) and 16 of the Rome Statute are causing the Court particular trouble. Some African states have argued that sitting heads of state cannot be indicted by the Court because such a situation would be in violation of customary international law (CIL), and would require other (African) states to choose between CIL and their own domestic laws on the one side and their responsibilities to the ICC on the other. Wrapped up in this argument, naturally, is the assumption that leaders of powerful states like the UK or US would never be indicted by the Court for political reasons. Articles 13(b) and 16 allow the UNSC to refer cases that would not otherwise be within the jurisdiction of the Court based on Rome Statute membership, 22 or to defer an ICC investigation or prosecution for a renewable period of 12 months. Thus, the Court could be viewed by some as simply another instrument for power politics. 23 The Court’s legitimacy is being challenged on a number of fronts, but most ardently by African states on this argument, that the Court is a tool of powerful states being wielded in unjust ways. This argument came to a head in 2016 and 2017, when the Court’s relationship with the African continent reached its highest point of tension, and South Africa, Burundi, and Gambia announced, in unprecedented moves, that they would each withdraw from the Court; at the same time, the African Union signalled regional dissatisfaction by adopting an “ICC withdrawal strategy.” 24
Unlike the United States, which wanted to see ultimate control over the Court lie with the UNSC (of which the US is a permanent member), 25 many African states were early and continuous supporters of an independent Court, signalling a belief that there was need for such an institution to address grave abuses domestically, and with hopes that the international institution would propel support for human rights globally and combat impunity. 26 Now they are among the most vocal about the perceived bias of the Court. Even though South Africa and Gambia walked back their withdrawals, the sting of the move has reverberated. The Philippines announced its withdrawal from the Court in March of 2018 as a response to the ICC Prosecutor, Fatou Bensouda, initiating a preliminary examination into alleged extrajudicial killings in the country. 27 It formally withdrew on 17 March 2019. 28 Further, commentators and academics have increasingly been criticizing the Court’s involvement in Africa 29 and its relationship with the UNSC and the world’s most powerful states. 30
Although the United States government has consistently opposed an international court that could hold US military and political leaders responsible in an international forum, away from US control, the veracity of its public opposition has ebbed and flowed. In the first years of the Court’s existence, the US was vocal about its opposition: in particular, Henry Kissinger criticized the likelihood that it would become a tool in international politics, 31 and the US initiated the American Service-Members’ Protection Act of 2002 32 and began seeking bilateral immunity agreements (BIA) with the intent to shield American citizens from the Court. In the intervening years, the US lessened its opposition to the Court—until recently. In its role on the UNSC, the US abstained from voting on the first UNSC referral, that of Darfur in 2005 (Resolution 1593). Thereafter, it became more involved, voting for the referrals of both Libya and Syria. And, although the American Service-Members’ Protection Act and BIAs remain in force today, “anti-ICC sanctions on countries refusing the agreements have been repealed.” 33 However, with the election of Donald Trump and his anti-multilateral administration, strong and public US opposition has returned, with an eventful September in 2018, when John Bolton threatened the ICC judges and lawyers, and Donald Trump declared in his speech to the United Nations General Assembly that the “United States will provide no support and recognition to the International Criminal Court. As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority.” 34
On top of this is the growing criticism that the Court is not as effective as it was expected to be. Problems that might once have been dismissed as growing pains persist. For example, the Court has had only three core convictions since it opened its doors. While some might argue that its principal function is prompting states to prosecute domestically (therefore the result of the Court doing its job well would be few cases), and that limited convictions reflect a just legal system (where indictees are assumed innocent and must be proven guilty), given the number of situations under preliminary examination and investigation and the reasons for some of the case closures, 35 these reassurances are not completely satisfying. Recognition that the ICC is in troubled times, then, is high. This is not to say that the challenges are insurmountable, but attention is needed both to solve the Court’s political and operational shortcomings and to champion its work and its successes. This environment of political challenges to the Court was the backdrop to Canada’s joining the multilateral referral of Venezuela, and its call on the UNSC to refer Myanmar. As the representative of the UK said in his speech to the ASP in December, there is reason for the supporters of the Court to “work together to address the challenges, for the future health of the Court.” 36 In a period of such turbulence, the Court needs all the support it can get, and referrals from member states can be seen as political support for the institution and faith in its integrity and effectiveness.
Financial challenges
As well as the political challenges it faces, the legitimacy of the Court is also threatened by financial concerns, both regarding the real financial constraints that affect its ability to be effective, and also concerning the way its financial responsibility is perceived. It is both important that the Court has the resources it needs to do its work, and also that the Court is seen as, at least not too far from, “the most efficient version of itself.” 37
The ICC faces financial challenges stemming from a limited budget it argues is not sufficient to do the work it is tasked to do. Given the global and open mandate of the Court, the 10 situations before it, 11 investigations, and 26 cases, the Court’s current budget, it has been argued, is spread too thin and puts considerable constraints on what it can accomplish. While the Court argues its need for an increased budget, 38 some states have argued and continue to argue for what is called a ZNG to the budget, effectively decreasing the Court’s budget. In this section, we look at what the Court argues a ZNG position—possibly a worst-case scenario—would look like for the Court, and argue that the slight increases the Court receives (tantamount to no growth or a reduction when inflation is taken into account) are not sufficient to relieve the financial pressure that the Court feels—pressure that ultimately affects its ability to be effective.
A ZNG budget would mean that the Court would be required to operate with the same budget as the previous year, with no regard for case load or increase for inflation. It would, according to many, place debilitating constraints on the Court’s work. The Court’s Registry, responsible for such aspects of the Court’s work as defence counsel, witness protection, and the Trust Fund for Victims (TFV), has argued that ZNG “will cause the Office of the Prosecutor [OTP]… to lose staff and operational capability” and “undermine its operations and compromise its ability to deliver on its mandate.” 39 The OTP would also have to “cut planned missions and delay—in some instances drastically—investigative activities,” and would be less able to effectively prepare cases. 40
The TFV (the organ of the ICC tasked with implementing Court-ordered reparations and providing physical and psychosocial rehabilitation or material support to victims of crimes that fall within the jurisdiction of the Court) noted that holding the budget constant would have a “crippling effect” on it.
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The impacts of such budget constraints would arguably lead to a reduced capacity for it to implement Court-ordered reparations, which would have “a highly damaging impact on victims’ rights-based expectations” in a number of contemporary situations, including the DRC, Kenya, Cote d’Ivoire, Mali, and the Central African Republic, to say nothing of future situations.
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David Scheffer writes: In 2018, 23 governments voluntarily contributed a total of €3.95 million to the TFV, with the Netherlands, Norway, and Sweden leading the way. In 2016, the total contribution collected was €1.7 million, and in 2017, the TFV received €3.03 million. While donor governments deserve praise for their contributions, such amounts are far less than the need dictates and reflect an unpredictable annual result.
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Despite all of this, rather than the budgetary increase commensurate with its work that the Court requested from the ASP, the ASP approved a 2019 budget “with a bare minimum increase of 0.49%,” regarded by some as a de facto decrease in budget. 45 As Janet Anderson writes, “ICC member states have agreed to a budget increase this year of less than ½ percent, which is in fact a cut to the court’s money, when inflation is taken into account.” 46 According to her, “the International Criminal Court’s administration had deliberately asked for no increase. Only the Office of the Prosecutor and the Victims Trust Fund had requested additional funding to do their jobs—investigate and prosecute massive human rights violations, and sort out reparations for victims.” 47
While the Court tied its request to its increasing workload and direct operational costs, it is not able to demand of its member states that it receive the budget it needs. The budgetary process—in very broad terms—consists of the Court submitting its so-called “proposed programme budget” to the Committee on Budget and Finance (CBF), which is a group of 12 individuals elected by the ASP who meet annually in two separate working groups, in The Hague and in New York. The CBF then either accepts the proposed budget submitted by the Court, or offers advice on “savings and efficiencies.” It is conceivable, but certainly not standard practice, that the CBF accepts the proposed programme budget of the Court. During the ASP meeting, then, representatives of member states within the so-called “Working Group” negotiate the final numbers, bearing in mind the recommendations of the CBF. In the end, it is the Working Group 48 on behalf of the ASP, not the Court or the CBF, that decides the level of the budget each year.
For the 2019 year, 49 the Court asked for €150,876,500. 50 The CBF recommended a total budget of €148,285,800, including the one-time payments states made for the building of the permanent premises, amounting to €3,585,100. 51 The ASP, however, approved €148,135,100, including the one-time payments, which presents a further reduction from the Court’s request of €150,000. 52 ASP documents note that “some states expressed serious concerns at the level of increase for Major Programme II and Major Programme VI.” 53 Major Programme II deals with the OTP, which is now entrusted with one additional situation and one additional preliminary investigation, namely Venezuela and Myanmar, respectively. Major Programme VI includes the TFV.
It is interesting to note that while investigations and cases that arise from UNSC referrals can be funded by the United Nations, 54 the two referrals that the UNSC has made—Resolutions 1593 and 1970, referring Darfur and Syria, respectively—have “imposed the entire financial burden of the new investigations and prosecutions on the court and its member countries.” 55 As well, the ICC contends with states that are in arrears of their contributions, 56 “states that have not yet paid in full their assessed contributions to the Court’s budget [which] has an impact on the Court’s work when it cannot access its full allocated budget.” 57
The financial challenges the Court faces are worrying in their own right, but they also feed into the political challenges the Court faces, and affect the legitimacy claims of the institution. On top of criticisms of bias, the Court also faces criticism that it does not use its funds efficiently. The ASP has aggressively been pushing for what it calls “savings and efficiencies” in the operations of the Court. 58 As the Coalition for the ICC reported in 2016, however, “over the past years, the ICC has worked to respond to the legitimate concerns of states parties about the efficient use of resources.” 59 The Court has continued to attempt to streamline their processes and costs in response to criticisms and concerns. 60 Like many large organizations, the ICC has work to do in this regard. However, the funds required by the OTP and the TFV exceed what could likely be found in the diminishing returns of internal reallocation of funds.
Unexpected challenges are also arising in regards to ICC financial stress in the early months of 2019. In March 2019, after being acquitted of the charges of crimes against humanity and war crimes on appeal, 61 Jean-Pierre Bemba of the Central African Republic filed a multi-million-Euro lawsuit against the Court for compensation for the length of his detention, his legal fees, and the destruction and damage of his property while in ICC custody. 62 While the prospect of funds being redirected to cover such costs is unwelcome, such financial challenges to the Court that arise unintentionally are not reasons to limit the operational budget of the Court so that it cannot effectively investigate and prosecute the crimes before it. Strict budgetary limitations may actually increase the likelihood of such civil cases against the Court if it is forced to cut corners and effectively do shoddier work.
Canada’s political support and financial support of the Court
Canada’s political support of the ICC not only comes at an important point in the history of the institution, but is also consistent with the country’s history of political support for it. Canada’s political support, however, rarely comes accompanied by the financial support or the political support for the budget that the Court needs to overcome the financial challenges it faces. As such, we can say that the political support offered may only relieve some aspects of the Court’s legitimacy problems. And, in fact, it seems that Canada’s support may be both positive and negative—in that it publicly affirms Canada’s commitment to the value of the Court and acts to counteract some of the negative messaging conveyed by some other states, while at the same time contributing to the financial strains of the Court, thereby adding to the likelihood that the Court will be perceived as ineffective or limited in its abilities and scope.
Canada has generally been very supportive of, and engaged with, the Court since its inception. Canada played a central role in the establishment of the ICC by contributing to the development of its founding treaty, the Rome Statute. Canada chaired the 1998 Rome Conference that established the ICC. The Canadian delegation to the Rome Conference played a brokering role in the negotiations regarding significant elements concerning how the ICC would look. These included the Court’s jurisdiction, definitions of the crimes within its jurisdiction, and the Court’s procedures and general principles. The Rome Statute was first open for signature on 17 July 1998. Canada signed it on 18 December of the same year, indicating an intention to ratify. On 29 June 2000, Canada became one of the first countries to adopt legislation to implement the Rome Statute domestically, when it enacted the Crimes against Humanity and War Crimes Act. 63 On 7 July 2000, Canada ratified the Rome Statute. The significance of Canada’s “leadership and ratification” was praised in 2000 as marking the first time a UN member state was simultaneously completing “ratification of the Rome Statute while enacting comprehensive national cooperation legislation. The Canadian example and legislation will greatly assist other nations in their efforts toward ratification.” 64 In 2005, under Prime Minister Martin, Canada made the first voluntary contribution of $500,000 to assist with the Court’s Darfur investigations. 65
Canada’s relationship with the ICC became somewhat uneasy under the Harper government. Clearly, Canada stayed engaged with the Court between 2006 and 2015, as Canadian officials were elected and appointed to key positions. However, as David Petrasek shows, despite Prime Minister Harper and his various foreign ministers speaking publicly and frequently about promoting freedom and human rights in the world, “the Conservatives put a distinct mark on foreign policy, turning aside from the even handedness and preference for multilateralism characteristic of previous Canadian governments.” 66 For example, Canada chose not to support the last Swiss-led initiative calling on the UNSC to refer the situation in Syria to the ICC, an initiative signed by over 60 countries, “including virtually all of Canada’s European allies.” 67 “Canada’s silence on this symbolic gesture marks a subtle but notable shift in attitude away from endorsing the role of international criminal justice in international affairs.” 68 It was at this time that Canada insisted on so-called ZNG in regards to the Court’s budget, 69 arguing the total budget should remain constant regardless of additional situations and investigations before the Court.
Such a position was troubling then, but it is not clear that Canada has moved significantly from this position to one that supports a strong ICC budget with the new government. Canada has renewed its strong political support of the Court. In 2016, at the 15th ASP, then Canadian minister of foreign affairs, Stéphane Dion, made a statement that “Canada was deeply saddened by the news that South Africa, Burundi and the Gambia have taken steps to withdraw from the court,” and claimed that Canada was “reaching out” to “work respectfully with all countries to find a way to strengthen the court for all.” 70 This strengthening has not seemed to include the public promotion of a stronger budget.
Although the annual negotiations dealing with the Court’s budget are closed to all but state parties, we know that Canada has long been playing a key role both in these negotiations and in the budget itself. Canada has had a representative elected to the CBF since 2009, with a Canadian official serving as chair from 2012 until 2018. 71 Canada is one of the major donors in terms of the so-called “assessed contributions” to the budget of the Court. For 2018, the Canadian assessed contributions totalled €7,156,663 (C$10,825,058.08 at the present exchange rate), and were paid in full and on time. 72 In addition, Canada contributed €7,350,409 (C$11,043,961.37) as a one-time payment for the newly built permanent premises. Given the large number of state parties and a wide distribution of economies, Canada is one of the top contributors to the Court. As mentioned, despite this, or perhaps because of it, Canada fairly consistently maintained a negotiating position of ZNG for the total working budget of the Court under the previous government. More recently, Canada has gone silent on the issue of the total budget in the public forum, as we saw again at the most recent ASP meeting in December 2018.
While the Canadian position has in fact shifted and Canada has not asked for “ZNG” outright since the change in government in Ottawa in 2016, at the 2018 ASP meeting Canada did raise its concern regarding the increase in the salary of the judges for 2019, even though the increase had been approved a number of years earlier. 73 Canada also made no comments criticizing the total approved budget. Not all states supported the approved budget or were willing to quietly accept what they felt were constraints on the Court’s ability to function well. Commentators highlight that Belgium, on behalf of 10 states, expressed disappointment that the budgetary process keeps leading to underfunding of the Court. 74 The representative from Belgium cautioned that the above-mentioned resources would not allow the Court to do its work to the level required, and that the minimal increase does not “reflect the world we are living in,” especially given the attacks the Court is under and the depth and breadth of the situations and preliminary examinations in which the Court is involved. 75 The representative from the Netherlands tweeted disappointment on the day of the budget approval. 76 Canada made neither a show of support for the budget nor a voicing of public disappointment.
Public political support is important for the Court, especially as it contends with arguments challenging its legitimacy based on charges of bias. However, it is also important that the Court not be obstructed from meeting its goals because it does not have the resources to do its work effectively. While we acknowledge that the Court has some internal budget difficulties it should address, the problems of the areas that most need increased funding are greater still. The Court will likely face difficult decisions: does it not investigate cases that it otherwise might because its resources are too thin? Or does it take on cases without the resources to do effective work, thereby increasing the likelihood of failures, poor and rushed work, and misjudgements, as well as inviting further criticisms of the Court?
Moving forward
Ultimately, then, as much as the Court needs public support for its existence, its work, and its potential, it fundamentally needs the budget to undertake its ever-increasing workload. As the permanent representative of the Netherlands to the ICC, Paul van den Ijssel, said at the end of the 2018 ASP meeting, “The budget is an important signal, because you put your money where your mouth is.” 77 As mentioned in our introduction, in an era of political challenges to the legitimacy of the Court, a seemingly sure way to further undermine it would be to add to its workload without ensuring it has the financial resources to do the work. Canada’s “We’re back” messaging should include recognition of this.
If Canada’s aim is to truly support the Court, and if it is intent on positioning itself as a global leader in supporting multilateralism in general and the ICC in particular, it should better support the Court’s financial ability to do the work it is tasked to do. This requires Canada to publicly support an increased budget to match the increasing workload of the Court. While Canada has seemingly moved from being a vocal proponent of a ZNG position to silence in regards to the budget, this shift is not sufficient. As Elizabeth Evenson and Jonathan O’Donohue argued back in 2016, “If countries are really serious about ensuring the court’s efficiency, they would work to fill every desk in the court and its field offices as soon as possible to ensure that the court addresses its current backlog of investigations and delivers justice to as many victims as possible in all regions.” 78 The Court needs Canada to put its political support behind promoting a stronger budget.
Canada should offer strong public support for a considerably larger budget at the next negotiations of the ASP this year. It might even go so far as to suggest more flexibility to the budget, given the fluctuating workload of the Court. As both Osvaldo Zavala and the Coalition to the International Criminal Court 79 have argued, a recurrent challenge to the Court’s budgeting “is the large degree of uncertainty attached to the judicial mandate of the institution.” 80 At the very minimum, Canada should make clear a new Canadian position on ZNG, communicating a recognition that the Court needs a growing budget that would allow it to not only efficiently and effectively work with the situations and investigations already part of its workload, but to do so with new investigations and situations as well.
Canada can also help in a number of smaller ways: one could be a sizeable voluntary contribution (perhaps directed at the investigation in Venezuela or of Myanmar if the latter gets referred by the UNSC). 81 Canada could contribute to the TFV, a fund to which Canada has not contributed since the Court began operating. Members of delegations familiar with the budget process noted that Major Programme VI, entitled “Secretariat for the Trust Fund for Victims,” was one of the key so-called “appropriation sections” which was substantially cut. One of the newly elected members of the TFV, Mama Koite Doumbia, noted that there seemed to have been a significant discrepancy between the rhetoric of states in regards to their support of the TFV, and their willingness—or lack thereof in this case—to support the Fund financially. 82 Both of these examples of financial support require that Canada redirect more of its own money to the Court. One might argue that doing so would not be in line with popular Canadian opinion, and that it might be in the Canadian national interest for Canada to use the Court in ways that align with its foreign policy priorities while seeking to minimize material costs to itself. Such an argument, while possibly reasonable from a short-term political standpoint, may run counter to Canadian interests in the long run, if Canada truly does value the ICC as an international institution and one worthy of staking some of its international reputation on publicly supporting. It would not seem to be in Canada’s national interest to publicly support the Court now if it will flounder greatly in the near future. Canada could also work to persuade states in arrears to pay their bills.
Naturally, budgetary support is a necessary but not sufficient condition for the ICC to successfully prosecute cases. It is important for Canada to continue to cooperate with the Court, to encourage other states to cooperate, and to generally offer political support in the form of public statements that demonstrate that Canada believes the Court to be a significant and vital addition to our institutions of global governance. Canada is a leader in political support for the Court’s work and potential. It now needs to step up its game in terms of political and financial support to relieve the financial challenges the Court faces, financial challenges that will only grow as the Court takes on more work without commensurate increases to its budget.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
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Canada has long held itself to be a global leader in peacekeeping, the promotion and protection of human rights, and the development of international justice. See Walter Dorn, “Canada: The once and future peacekeeper?” Peace Magazine (October–December 2006): 16; Peter Stoett and Mark Kersten, “Beyond ideological fixation: Ecology, justice, and Canadian foreign policy under Harper,” Canadian Foreign Policy Journal 20, no. 2 (2014): 229; and Chrystia Freeland, “Address by Minister Freeland on Canada’s foreign policy priorities,” Global Affairs Canada. Government of Canada. 6 June 2017, 
(accessed 14 December 2018).
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5
6
As laid out in Article 13 of the Rome Statute of the ICC, the Court can only exercise jurisdiction over crimes committed within state parties or by nationals of state parties unless a situation is referred by the United Nations Security Council. Since referrals from member states of the Court can only be made of other member states, Canada was able to directly refer Venezuela but not Myanmar, as the latter is not a state party to the Rome Statute. Therefore Canada’s only recourse to ask that the Myanmar situation be examined by the ICC was to request of the UNSC that it refer the situation.
7
8
Luis Almagro, Santiago Canton, Irwin Cotler, and Manuel Ventura Robles, “Report of the General Secretariat of the Organization of American States and the Panel of Independent International Experts on the possible commission of crimes against humanity in Venezuela,” Organization of American States, 29 May 2018, http://www.oas.org/documents/eng/press/Informe-Panel-Independiente-Venezuela-EN.pdf (accessed 15 March 2019). The Office of the United Nations High Commissioner for Human Rights also published a report of violations in Venezuela: United Nations Human Rights Council, “Human rights violations in the Bolivarian Republic of Venezuela: A downward spiral with no end in sight,” Office of the High Commissioner, June 2018, (accessed 15 March 2019).
9
10
Almagro et al., “Report of the General Secretariat of the Organization of American States and the Panel of Independent International Experts,” 16.
11
Ibid., 449.
12
According to CBC, “Government sources told CBC that Canada’s decision to refer Venezuela is also meant as a show of support for the ICC, an institution this country believes in that is under attack.” “Canada joins multilateral move to take Venezuelan government to International Criminal Court,” CBC News, 25 September 2018, (accessed 15 March 2019). The authors of this article independently received similar confirmation from an anonymous government source.
13
14
15
Ibid.
16
17
Bensouda, “Statement of the Prosecutor of the International Criminal Court, Mrs. Fatou Bensouda, on opening preliminary examinations into the situations in the Philippines and in Venezuela.”
19
Kirsten J. Fisher, “Africa’s role in the progression of international criminal justice: A moral and political argument,” Journal of Modern African Studies 56, no. 4 (2018): 541–568.
20
21
Kirsten J. Fisher, Moral Accountability and International Criminal Law: Holding Agents of Atrocity Accountable to the World (London: Routledge, 2012), 15; and Asad Kiyani, “The antinomies of legitimacy: On the (im)possibility of a legitimate International Criminal Court,” African Journal of Legal Studies 8, no 1–2 (2015): 1–32.
22
As mentioned in footnote 6, the ICC has jurisdiction over situations of member states only (meaning the situation has to occur within a member state or involve the citizens of a member state), unless the UNSC refers a situation. If the UNSC refers a situation, the membership status of the state in unimportant to the issue of ICC jurisdiction, and in this way the jurisdiction of the Court can be expanded to situations that would not otherwise be covered.
23
Madeline Morris, “The democratic dilemma of the International Criminal Court,” Buffalo Criminal Law Review 5, no. 2 (2002): 591–600; Aaron Fitchtelberg, “Democratic legitimacy and the International Criminal Court: A liberal defence,” Journal of International Criminal Justice 4, no. 4 (2006): 765–785; Catherine Gegout, “The International Criminal Court: Limits, potential and conditions for the promotion of justice and peace,” Third World Quarterly 34, no. 5 (2013): 800–818; Kamari Maxine Clarke and Sarah-Jane Koulen, “The legal politics of the Article 16 decision: The International Criminal Court, the UN Security Council and ontologies of a contemporary compromise,” African Journal of Legal Studies 7, no. 3 (2014): 297–319.
24
25
William A. Schabas, “United States hostility to the International Criminal Court: It’s all about the Security Council,” European Journal of International Law 15, no. 4 (2004): 701–720.
26
Kurt Mills, “Bashir is dividing us,” Human Rights Quarterly 34, no. 2 (2012): 404–447.
27
28
29
Phil Clark, Distant Justice: The Impact of The International Criminal Court on African Politics (Cambridge, UK: Cambridge University Press, 2018), 20.
30
Dire Tladi, “When elephants collide it is the grass that suffers: Cooperation and the Security Council in the context of the AU/ICC dynamic,” African Journal of Legal Studies 7, no. 3 (2014): 381, Clarke and Koulen, “The legal politics of the Article 16 decision”; Andrea Birsall, “The responsibility to prosecute and the ICC: A problematic relationship?’ Criminal Law Forum 26, no. 1 (2015): 51–72.
31
Henry A. Kissinger, “The pitfalls of universal jurisdiction,” Foreign Affairs, 80, no. 4 (2001): 86–96.
32
33
34
35
For example, charges against Uhuru Kenyatta from Kenya were dropped due to lack of evidence amid speculation of witness tampering.
36
37
Osvaldo Zavala, “The budgetary efficiency of the International Criminal Court,” International Criminal Law Review, no. 18, no. 6 (2018): 461–488, at 464.
38
39
40
Ibid.
41
Ibid.
42
Ibid.
43
44
Ibid.
45
46
47
Ibid.
48
During this Assembly, the Working Group was headed by Denmark.
49
“Assembly of States Parties Meetings of the International Criminal Court, Seventeenth Session: Official Records, Volume II,” 5–12 December 2018, 5–214.
50
51
Ibid.
52
Ibid.
53
Ibid.
54
Article 115 of the Rome Statute explicitly notes that the United Nations, upon approval by the General Assembly, may provide funds for the Court, especially in instances where the UNSC is referring cases to it. “Rome Statute of the International Criminal Court,” International Criminal Court, 2011, , (accessed 15 March 2019).
55
56
The outstanding balance reached its highest level in 2017 and amounted to €31 million. “Assembly of States Parties Meetings of the International Criminal Court, Seventeenth Session: Official Records, Volume II,” 5–12 December 2018, 433.
57
58
“Assembly of States Parties Meetings of the International Criminal Court, Seventeenth Session: Official Records, Volume II,” 5–12 December 2018, 15–18.
59
“Victims to lose out,” Coalition for the ICC.
60
Zavala, “The budgetary efficiency of the International Criminal Court,” 464.
61
62
63
Despite ambitions and initial enthusiasm, however, Canada’s contribution to the international fight against impunity in terms of domestic prosecutions of war crimes and crimes against humanity with this legislation has been uninspiring. Jennifer Moore, “Canadian domestic prosecution of international crime,” in John Packer, Kirsten J. Fisher, and João Velloso, eds., Canadian Yearbook of Human Rights, vol. 1 (2015), 39–60.
64
65
66
67
Ibid.
68
Stoett and Kersten, “Beyond ideological fixation,” 230.
69
Crosbie, “Statement to the 13th Assembly of States Parties of the International Criminal Court.”
70
71
72
“Assembly of States Parties Meetings of the International Criminal Court: Official Records, Volume II,” 5–12 December 2018, 242.
73
74
75
Thirteenth Plenary, Adoption of Resolutions by Working Groups, 12 December 2018, 11h00.
77
Anderson, “More money matters at the ICC.”
78
79
“Victims to lose out,” Coalition for the ICC.
80
Zavala, “The budgetary efficiency of the International Criminal Court,” 462.
81
The authors recognize that voluntary contributions, however, might be considered controversial because they might be seen to have the potential to “politicize” the Prosecutor’s investigations.
82
NGO Strategy Meeting, Assembly of States Parties Meetings of the International Criminal Court, World Forum, Africa Room, 12 December 2018, The Hague, The Netherlands.
Author Biographies
Kirsten J. Fisher is an assistant professor in political studies at the University of Saskatchewan. She is the author of Transitional Justice for Child Soldiers (Palgrave 2013) and Moral Accountability and International Criminal Law (Routledge 2012), and is the co-editor/co-author of Transitional Justice and the Arab Spring (Routledge 2014). Her articles have appeared in journals including International Criminal Law Review, Journal of International Political Theory, Journal of Modern African Studies, Finnish Yearbook of International Law, and International Journal of Law in Context.
Laszlo Sarkany’s research interests deal with the International Criminal Court (ICC), the making of foreign policy in regards to international criminal justice, multilateralism, and the prohibition of environmental damage in conflict. He teaches at King’s University College, the University of Waterloo, and at the main and Brantford campuses of Wilfrid Laurier University. Since 2011, Laszlo has been accredited to the Assembly of States Parties meetings of the ICC as a member of delegation of “No Peace Without Justice,” an NGO registered with the Economic and Social Council of the United Nations.