The Proposed Independent Oversight Mechanism for the International Criminal Court
While we can all support, in principle, the proposition that judicial institutions, like all others, need to adhere to good governance, how exactly to fulfill this reasonable demand in the particular context of international courts requires considerable and continued attention from practitioners and scholars.
Securing the accountability of one particular kind of international organization, namely international courts, raises unique issues, as is suggested by on-going efforts to establish supervisory mechanisms within the International Criminal Court (ICC). The Independent Oversight Mechanism (IOM) for the ICC , as originally proposed, would have enabled a subsidiary of the Court’s political organ, namely the Assembly of State Parties, to have independent investigatory capacity over members of the staff of the Prosecutor of the ICC without the need for prior approval of the Prosecutor. This would have been inconsistent with the provisions of the Rome Statute granting the independence of the Office of the Prosecutor and would have been unwise. The proposed IOM contains other uncertainties or ambiguities that should be resolved. International lawyers need to devote attention to these institutional matters lest the independence of the Prosecutor, and of the Court itself, be undermined.
International organizations have long faced challenges of transparency, responsibility, and accountability. Ever since the International Court of Justice expressed its opinion that the United Nations, as a subject of international law, enjoys both rights and responsibilities under international law,1 international lawyers have been struggling to understand what exactly this entails. We have found it much easier to determine what the powers of these organizations are than what limits does international law, as such, impose on what these organizations do. This is largely because the international primary rules of obligation, with the exception of those imposed by organizational charters themselves, have been elaborated among and normally applied to states inter se. Even universal human rights conventions, such as the International Covenant on Civil and Political Rights, are not treaties that international organizations can ratify. Further, even when we presume to have found legal limits that can be applied to our organizations, we have encountered grave difficulties in finding venues where these can be enforced with binding effect. We are struggling with ways to overcome the inescapable fact that our international courts (with narrow exceptions for acts of European Union institutions, certain UN peacekeepers, and those established to protect organizations’ staff) have no jurisdiction to impose binding decisions upon our international organizations. The most that an inter-state court such as the International Court of Justice can do is to express its view in the course of an advisory opinion in response to an organization’s request. Accordingly, we have created alternatives—from ombudspersons to international financial institution’s creative inspection panels—to impose measures of transparency and accountability, if not quite legal responsibility, on our international organizations. At the doctrinal level, the International Law Commission has been attempting—with mixed success—to elaborate Articles of Responsibility for International Organizations on the model of those it defined for states in 2001.2
For the most part, however, all of these efforts have not directly addressed the question of transparency, accountability, and/or responsibility of the most recent kind of international organizations, namely our proliferating international courts, tribunals, and other adjudicative mechanisms (such as human rights treaty committees). We have tended to see are international judges or adjudicators as guardians of international law and not as institutions that require oversight and control themselves. Of course, international courts and tribunals are themselves international organizations. Even guardians—whether cops or courts—need to be held accountable lest they become abusers of the law. Indeed, if one applies the definition of “international organizations” included in the ILC’s on-going draft rules on the responsibility of international organizations, it would appear that the International Criminal Court qualifies as “an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality.”3 And yet it is hard to take seriously the proposition that the ICC or for that matter the Special Court for Sierra Leone is really subject to the secondary rules of responsibility being elaborated by the ILC. It is hard to imagine, for example, that the ICC has, at its disposal, “countermeasures” in the same sense of do injured states, or that it, like states, benefits from traditional inter-state excuses such as the defense of necessity or that it can invoke inter-state remedies such as reparation for injuries done to it as an international person. Moreover, if these secondary rules are indeed applicable to the ICC, it is not clear which parts of the institution—court, prosecutor, registry, Assembly of State Parties—are capable of invoking them and with what effect.
If international lawyers want to make international courts such as the ICC accountable, it would appear that it is much more practicable to create special mechanisms to enable this to occur and not be misled by analogies drawn from the inter-state rules of state responsibility. Article 112(4) of the Rome Statute, which enables the Assembly of State Parties to “establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy,” is one such mechanism. Article 112(4) is a welcome concession to the fact that international organizations that seek to establish the rule of law on others need themselves to adhere to the rule of law. This is consistent with what proponents of “global administrative law” (GAL) contend. Those who describe international legal regimes as applying species of “global administrative law” see such regimes as requiring their subjects, which are usually states, to adhere to what Lon Fuller once described as the “inner morality of law,” namely actions that promote the values of stability, predictability and consistency.4 The GAL project contends that those who impose such standards on others can expect to generate reciprocal expectations with respect to their own behavior.
Of course, those expectations vary with the type of international institution at issue as well as the extent to which the organization purports to regulate (or administer) others. What the “inner morality of law” demands from international organizations differs with the organization, its structure and its purpose. (This reality, largely absent from the ILC’s on-going effort to find uniform secondary rules of obligation applicable to all international organizations, may prove to undermine that ILC’s enterprise.) We can expect expectations to be higher for institutions that intervene more forcefully into formerly sacrosanct spheres of “sovereign action.” We can also expect distinctions based on the kind of legal powers being exercised. Political actors, such as the UN’s Security Council or its General Assembly, might be expected to respond to “global administrative law” values differently than international courts. While we are entitled to demand high degrees of transparency and participation with respect to, for example, the General Assembly or institutions such as the World Bank, we do not expect the same degree of transparency or participation with respect to international courts.5 We are not entitled to demand that international judges deliberate in public or that they be open to receive the views of any and all persons who want to approach the bench. At the same time, the fact that a Court like the ICC can intervene directly with respect to an individual who is a national of a state and deprive that individual of his or her freedom is about as forceful a measure that any international body can take. Such power entails responsibility.
How to impose either accountability or responsibility on the ICC as an institution, or on its particular organs, remains a challenge. Recourse to the usual tools encounters severe limits in the case of the ICC. The degree and extent of “participation” is necessarily delimited for the ICC, given the competing demands of a criminal trial—which seeks to provide reasonably swift justice while respecting the rights of the criminal defendant. At the same time, if domestic courts are a reliable guide, the inner morality of law demands that even our international courts should be administered in ways that are free from corruption and conflicts of interest, and in ways that remain transparent enough in their operations to enable others to assess whether this is the case. We are also entitled to expect that institutions within the Court—from the Assembly of State Parties to the Office of the Prosecutor to its Registry—respect the rights of their employees and staff such that neither sexual harassment nor nepotism, for example, is tolerated or condoned. We are also entitled to expect that codes of professional responsibility apply to this body and its personnel no less than in other comparable contexts. The lawyers and judges in the ICC need to respect rules governing conflicts of interest, for example.
Article 112(4) of the Rome Statute recognizes that good governance and administrative oversight are key ingredients in ensuring accountable institutions. At the same time, that provision does not resolve just how the ICC should apply those legitimate concerns in the unique context of a court that may operate in contexts involving on-going armed conflicts, amidst competing concerns of prosecutorial and judicial independence, and requiring protection from undue external interference with the core activities of investigating and prosecuting cases.
At its eighth session, the Assembly of State Parties adopted resolution ICC-ASP/8/Res.1 by which it decided to establish an Independent Oversight Mechanism (IOM) in accordance with Article 112(4). The difficulties posed by the IOM as originally proposed highlights the challenge of achieving these simultaneous, perhaps competing, goals. This essay uses that original proposal—and the Office of the Prosecutor’s reaction to it—to explore the challenges posed by Article 112(4).
As originally proposed, the IOM would receive and investigate reports of misconduct or serious misconduct, including possible unlawful acts by a judge, the Prosecutor, a Deputy Prosecutor, the Registrar and the Deputy Registrar of the Court (hereinafter “elected officials”) and all staff subject to the Staff and Financial Regulations and Rules of the Court and all contractors and/or consultants retained by the Court and working on its behalf.6 The Office of the Prosecutor objected to this provision, which on its face did not require the IOM to notify the Prosecutor himself of any misconduct or unlawful acts by his staff or contractors prior to the IOM’s initiation of an investigation.7
In my view, the Prosecutor’s office had legitimate reasons to object to this provision—which apparently has since been removed from the proposal. This essay explores why.
The proposal that the IOM could, on its own and without prior consultation with the Prosecutor, directly investigate members of his staff is problematic under the Rome Statute. While there is in principle no problem with an IOM capable of investigating the Prosecutor and Deputy Prosecutor themselves, an IOM capable of investigating the Prosecutor’s staff directly strikes at the statutorily mandated independence of the Office of the Prosecutor (OTP) as this is recognized in Article 42 of the Rome Statute. Article 42, which is grounded in the need to protect the OTP’s prosecutorial independence from any attempt at external interference, argues strongly against such an expansive scope of investigative and oversight authority by the IOM.
As noted, the foundation of the IOM’s proposed mandate, and indeed, the IOM’s existence, is Art. 112(4) of the Rome Statute which identifies the IOM as a “subsidiary organ.” As a “subsidiary body,” the IOM is a mere appendage of the Assembly of State Parties. This is confirmed by the draft mandate of IOM which confirms that its Head will be selected by the Assembly of State Parties (para. 7), can be removed by the Assembly (para. 8), and will be evaluated by the Assembly President (para. 9). The proposed IOM also leaves it to the Assembly to assess complaints against the Head of the IOM (para. 10) and affirms that while the IOM will have “operational independence,” it remains under the “authority” of the President of the Assembly (para. 11), as is confirmed by the contemplated reporting obligations under para. 28. In addition, the Assembly is contemplated to hold the purse-strings power over the IOM (see para. 32). The IOM is also grounded in Art. 112(2)(b) which explains that the Assembly of State Parties shall “[p]rovide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court.”8
As a constitutional matter, then, the issue remains whether the Rome Statute contemplates that the State Parties would have investigatory authority over prosecutorial staff in the absence of consent by the “independent” Prosecutor that they took such trouble to establish. The Rome Statute makes multiple references to “The Office of the Prosecutor,”9 and clearly differentiates between the Prosecutor,10 OTP,11 and “the staff of the Office of the Prosecutor.”12 The expressio unius canon of interpretation supports a reading of Art. 112(2)(b) that confines the IOM’s capacity to initiate investigations of misconduct only against the Prosecutor or against those staff members whom the Prosecutor gives his permission to investigate. Similarly, Art. 112(4)’s grant of authority to the Assembly to establish an independent oversight mechanism over “the Court” plausibly extends only to those organs that compose the Court under Art. 34, including only “the Office of the Prosecutor” but not its staff. Furthermore, specific Rome Statute provisions distinguish the OTP from other organs of the Court in terms of administration. Art. 38(3) establishes that the Presidency is charged with the “proper administration of the Court, with the exception of the Office of the Prosecutor,” and Art. 43(1) states that the Registry is responsible for the non-judicial aspects of administration and servicing of the Court, “without prejudice to the functions and powers of the Prosecutor in accordance with article 42.”
In other words, if the Rome Statute intended to bestow the IOM with authority to initiate investigations of OTP staff on its own authority, it would have said so in Art. 112(2)(b). This is a plausible contextual interpretation especially when considered alongside the unequivocal provision that “[t]he Prosecutor shall have full authority over the management and administration of the Office, including the staff, facilitates and other resources thereof.”13 Arguably, any infringement upon the Prosecutor’s “full power” over management and administration of the staff (without his consent) presumptively violates the Rome Statue. As the initiation of misconduct investigations presumably falls under “management and administration” duties, only the Prosecutor, and not the IOM, may launch them against OTP staff members. This argument is therefore akin to those made in favor of lex specialis regimes. The contention is that the Office of the Prosecutor was intentionally made subject to a distinct accountability regime to enable it to fulfill the duties envisioned by Art. 15.14 The ordinary meaning of Arts. 112(4), 112(2)(b), and 42(2) argues that only the Prosecutor, and not subsidiary bodies of the ASP, has authority to initiate misconduct investigations against OTP staff members.
As originally proposed, the procedural safeguards contemplated for the IOM did not satisfactorily address this fundamental inconsistency with the Rome Statute. Although the Statute never states explicitly that the IOM may not investigate OTP staff on its own authority, an ordinary reading of the Statute15 indicates an exclusive delegation of oversight of OTP staff to the Prosecutor, while simultaneously limiting the investigatory reach of the IOM to the Prosecutor and not to OTP staff members.
At the same time, the laconic Rome Statute provisions on point are not a model of clarity. Not everyone would agree with the above interpretation of the Rome Statute. Nonetheless, even if the IOM is entitled to exercise some oversight over the OTP, the Rome Statute’s clear recognition of that office’s independence argues for at least some limits on the extent to which the IOM should be able to exercise this external oversight. It appears reasonable and most consistent with the scheme envisioned in the Rome Statute to require that while IOM oversight can extend to senior named officers (the Prosecutor and Deputy Prosecutor), it cannot bypass the independent authority of those officers and reach directly to individual staff members within the OTP.
The current Regulations of the Office of the Prosecutor support this interpretation as well. These delegate to OTP authority to enforce standards of professional conduct among its staff members. Regulation 17 reads, “The Office shall ensure compliance with the Staff Rules and Regulations and Administrative Instructions of the Court in order to ensure that its staff members uphold the highest standards of efficiency, competence and integrity.”16 Thus, the Regulation specifically endows OTP with the power to enforce compliance with the office’s standards of professional conduct. Moreover, the regulations echo the Rome Statute’s emphasis on the independence of OTP, mandating that, “In all operational activities of the Office, at headquarters and in the field, the Prosecutor shall ensure that the Office and its members maintain their full independence and do not seek or act on instructions from any external source.”17
Other provisions of the Rome Statute support the contention that even if the IOM has authority to investigate the OTP (including its staff members), it must still obtain the consent of the Prosecutor before doing so. Article 46(1) details provisions for removing elected officials for serious misconduct. Similarly, Article 42(8) grants the Appeals Chamber authority to respond to requests by investigated or prosecuted parties for the removal of the Prosecutor or Deputy Prosecutor, but not for lower-level staff members (for example, the trial lawyers or investigators). These explicit provisions leave out misconduct by staff members, suggesting that this kind of misconduct was meant to be dealt with internally, within the relevant organ. The Assembly of State Parties has authority to directly remove elected officials for misconduct, and as such the IOM, as an extension of the Assembly’s authority, would seem to have authority to investigate such instances of misconduct. The Assembly does not, however, appear to have such direct statutory authority to remove individual staff members—and, as a result, the IOM’s direct authority to investigate those staff members seems to be on a more tenuous footing.
For all these reasons, the Prosecutor’s objections to the initial IOM proposal were on solid legal ground. His office was correct to argue that stripping the Prosecutor of the authority to preserve OTP’s independence by transferring the authority to monitor misconduct to a subsidiary of Assembly of State Parties would have undermined both the Rome Statute and the Regulations of the Office of the Prosecutor by undermining the Prosecutor’s delegated authority and compromising OTP’s independence.18 The OTP memo is also on solid ground when it notes an ambiguity with respect to the anticipated procedural safeguards in the IOM’s mandate. As it notes, the IOM’s mandate is unclear on whether the Prosecutor must be notified prior to investigations (as suggested by para. 19) or might be notified if the IOM decides to do so (as is suggested by para. 17). At a minimum, this point should be clarified in any final decision establishing the IOM.
The debate over the proposed IOM’s mandate and how it is ultimately resolved has a wider significance. The Rome Statute, like any treaty, is ultimately subject to interpretations accepted by its organs, including the State Parties, the Registry and the Court. If, as is suggested by the original IOM proposal, the State Parties now seem inclined to take a broader view of the authority granted to them under Art. 112(4), this could, over time, change the meaning of that and other provisions in the Rome Statute. While the subsequent interpretation of the majority of the parties to a treaty or institutional organs established by them cannot legitimately amend a treaty, these can constitute authoritative interpretations of provisions that are to some extent ambiguous. That much seems established by ICJ Advisory Opinions on point. Art. 112(4) is admittedly not a model of clarity. A contention that by its terms it anticipates supervisory authority over the Court as a whole, including the staff of the Office of the Prosecutor, might become plausible over time if the Assembly of State Parties says so and other parts of the Court accept it.
Even so, if the question is not whether the IOM can exercise independent oversight but how such oversight should be practically exercised and over what aspects of the work of the OTP, these matters are not clearly resolved by the proposal for the IOM at least as these had evolved through 2010. Even if one assumes that Art. 112(4) accords authority for IOM supervision of the entire Court, this authority should be necessarily restricted to supervision over the non-judicial aspects of the work of the OTP.
If some activities of the OTP are appropriately under IOM oversight it would seem crucial to distinguish between the judicial and non-judicial activities of OTP. The draft mandate for the IOM (at least as proposed in 2010) did not clearly identify which aspects of the work of the staff of the OTP the IOM would have authority to investigate. It merely indicates that the IOM’s investigative authority would not include human resources disputes, personnel grievances, work performance, and conditions of employment (IOM, para. 5.) These exclusions alleviate concerns that the IOM will interfere with day to day management of OTP but they do not clarify which “administrative” activities of the OTP would remain within IOM oversight.
Finally, the issue of intermediaries merits additional consideration. Intermediaries are explicitly excluded from the scope of the proposed IOM’s investigative authority. However, conduct and alleged misconduct by intermediaries and their handlers and liaisons has been at the forefront of the Lubanga trial’s abuse of process proceedings. Despite the categorical exemption of intermediaries from the IOM’s mandate, it is certainly conceivable that an IOM investigation of OTP staff would reach the same substantive conduct through the support, oversight, authorization, or instructions given by OTP staff to intermediaries. Considering the explicit concern that any IOM investigation of intermediaries would pose a significant risk to OTP activities, the parallel risk from investigations of OTP staff members in relation to intermediaries merits more explicit consideration.
As the difficulties canvassed above in connection with establishing an IOM suggest, international lawyers are only just beginning to confront the accountability challenges posed within international judicial institutions. While we can all support, in principle, the proposition that judicial institutions, like all others, need to adhere to good governance, how exactly to fulfill this reasonable demand in the particular context of international courts requires considerable and continued attention from practitioners and scholars. Given the absence of an elected executive or legislature at the international level, we cannot readily export, without modification, models of accountability used with respect to national courts. International lawyers need to find their own ways to strike the difficult balance between making our courts accountable to the political bodies that pay their expenses while still assuring their independence from the same political bodies.
At present, the ICC is undertaking a “mapping” exercise intended to seek to understand how the various mechanisms for accountability within the Court should interact. It is time that the academic community join that conversation.
Advocates of the ICC have been, understandably, preoccupied with protecting the Court from those who oppose it or resist cooperating with it. For a time, we have been preoccupied with other looming substantive issues, such as whether and how the crime of aggression would be incorporated. Now that the Court is a reality and some of these other issues have been resolved (or at least postponed), we need to confront challenges that the Court faces as an institution. We need to confront challenges from the discrete units and interests that form the Court itself and pose challenges from within it. As the reactions of some African states and the African Union to some actions and indictments issued by the Prosecutor suggest, the actions of an “independent” Prosecutor or the confirming actions of pre-trial chambers, may sometimes generate political reactions within some governments, including by some that are members of the Assembly of State Parties. This is not unusual. Many treaty regimes once in place generate second thoughts by those who establish it. The Assembly of State Parties, although a guardian of the Court, is manifestly a political body which may sometimes be inclined to take political actions. The rest of the Court—Registry, judges, and OTP—needs to be accountable to the states that established the Court and pay its expenses. The challenge is to make sure that the necessary accountability mechanisms established by and subject to the control of the Assembly do not become vehicles for undermining the laudable goals of the Rome Statute, including the independent office of its Prosecutor.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See Draft Articles on Responsibility of International Organizations, Report of the Commission on the work of its sixty-first session, Supplement No. 10 (A/64/10); Articles of State Responsibility, Report of the Commission on the work of its fifty-third session, Supplement No. 10 (A/56/10). ↩
Article 2, Draft Articles on the Responsibility of International Organizations, id. ↩
See, e.g., and , Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality and the Emerging Global Administrative Law, in El Nuevo Derecho Administrativo global en América Latina, 221, at 234-35 (2009). Available online. ↩
But even here, there may be distinctions among our international “courts.” Investor-state arbitral institutions, especially ICSID, are not undertaking considerable moves towards enhancing transparency and participation (as through greater acceptance of amicus briefs). ↩
Draft Report of the Hague Working Group on the Independent Oversight Mechanism, dated 5 November 2010, para. 2. ↩
See Legal Memorandum on the IOM mandate, 19 Nov. 2010. ↩
See Vienna Convention on the Law of Treaties, art. 30(1), May 23, 1969 (stating, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”). ↩
ICC, Regulations of the Office of the Prosecutor, Reg. 17, April 23, 2009 (emphasis added), available online. Moreover, this regulation’s specific reference to “staff members” is consistent with the Prosecutor’s claim that while the adherence OTP “staff members” to standards of conduct remains a concern exclusively within the Prosecutor’s purview, the IOM is authorized to initiate investigations of misconduct by the Prosecutor himself. ↩
Id., Reg. 13. ↩
Regulation 10.2 of the Staff Regulations confirms that either the Registrar or Prosecutor, as appropriate, is responsible for enforcing standards of conduct among staff. See ICC, Staff Regulations, Reg. 10.2, Sept. 12, 2003, available online. ↩