Argument

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 (¶ 7), can be removed by the Assembly (¶ 8), and will be evaluated by the Assembly President (¶ 9). The proposed IOM also leaves it to the Assembly to assess complaints against the Head of the IOM (¶ 10) and affirms that while the IOM will have “operational independence,” it remains under the “authority” of the President of the Assembly (¶ 11), as is confirmed by the contemplated reporting obligations under ¶ 28. In addition, the Assembly is contemplated to hold the purse-strings power over the IOM (see ¶ 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 ¶ 19) or might be notified if the IOM decides to do so (as is suggested by ¶ 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, ¶ 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.

Conclusion

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).

1. 1.

   See Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174 (Advisory Opinion). ↩

2. 2.

   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). ↩

3. 3.

   Article 2, Draft Articles on the Responsibility of International Organizations, id. ↩

4. 4.

   See, e.g., Benedict Kingsbury and Stephan Schill, 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. ↩

5. 5.

   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). ↩

6. 6.

   Draft Report of the Hague Working Group on the Independent Oversight Mechanism, dated 5 November 2010, ¶ 2. ↩

7. 7.

   See Legal Memorandum on the IOM mandate, 19 Nov. 2010. ↩

8. 8.

   Article 112(2)(b) of the Rome Statute. ↩

9. 9.

   See, e.g., id. at arts. 42(1), 48(3) ↩

10. 10.

    See, e.g., id. at arts. 43(6), 47. ↩

11. 11.

    See, e.g., id. at art. 44(4). ↩

12. 12.

    See, e.g., id. at arts. 47, 48(5) ↩

13. 13.

    Id. at art. 42(2) (emphasis added). ↩

14. 14.

    Notably, there does not seem to be an equivalent to Art. 42(2) that applies to the judges of the Court. ↩

15. 15.

    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.”). ↩

16. 16.

    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. ↩

17. 17.

    Id. at reg. 13. ↩

18. 18.

    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. ↩

19. Suggested Citation for this Comment:

    José E. Alvarez, The Proposed Independent Oversight Mechanism for the International Criminal Court, ICC Forum (May 6, 2011), available at https://iccforum.com/oversight#Alvarez.

    Suggested Citation for this Issue Generally:

    What is the Proper Balance Between Oversight and Independence?, ICC Forum (May 6, 2011), available at https://iccforum.com/oversight.

Argument

During 2010 a debate arose about the legitimate scope of the proposed mandate of the Independent Oversight Mechanism (“IOM”), a subsidiary body of the Assembly. The IOM had been established by the Assembly under Article 112(4) of the Rome Statute to enhance the Court’s “efficiency and economy”. The issues that arose concerned particularly the role of the IOM towards the Office of the Prosecutor (“OTP”), given the latter’s guarantee of independence under Article 42.

The Assembly’s relevant powers are provided by Article 112, especially the following:

2. The Assembly shall:

…

(b) Provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court;

…

(g) Perform any other function consistent with this Statute or the Rules of Procedure and Evidence.

…

4. The Assembly may 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.

It may be noted in passing that the Assembly must consider that the establishment of any subsidiary body is “necessary” and not merely “desirable” in order to enhance the efficiency and economy of the Court.

Of greater significance, however, is the limitation imposed by Article 112(4) that such a subsidiary body have only the powers of “inspection, evaluation and investigation” of the Court and its organs, including the OTP, and that it not be established or operate for any other purpose.

The OTP is dealt with in Article 42 of the Rome Statute which provides, relevantly:

1. The Office of the Prosecutor shall act independently as a separate organ of the Court…

2. The Office shall be headed by the Prosecutor. The Prosecutor shall have full authority over the management and administration of the Office, including the staff, facilities and other resources thereof…

Further reinforcement of the independence of the Prosecutor is provided in Article 43 which provides:

1. The Registry shall be responsible for the non-judicial aspects of the administration and servicing of the Court, without prejudice to the functions and powers of the Prosecutor in accordance with article 42.

As originally proposed (Annex to the IOM Operational Mandate—Final Draft 25 October 2010), the IOM was to have the following investigation function.

2. The independent oversight mechanism may 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”), all staff subject to the Staff and Financial Regulations and Rules of the Court (hereinafter “staff” or “staff member”) and all contractors and/or consultants retained by the Court and working on its behalf (hereinafter “contractors”).

3. All reports of misconduct or serious misconduct, including possible unlawful acts, made against an elected official, staff member or contractor shall, if received by the Court, be submitted to the independent oversight mechanism. Any person submitting such reports may also elect to submit a copy to the Presidency of the Court for informational purposes only. Likewise, staff members submitting a report against other staff members may elect to submit a copy of their report to the Prosecutor or Registrar, as appropriate.

4. The results of investigations conducted by the independent oversight mechanism shall be transmitted to the Presidency, Registrar or Prosecutor of the Court, as appropriate, together with recommendations for consideration of possible disciplinary or jurisdictional action.

5. The independent oversight mechanism will not investigate contractual disputes or human resource management issues, including work performance, conditions of employment or personnel-related grievances.

A further qualification on these procedures was provided by clause 17:

17. The independent oversight mechanism may notify the Presidency, Registrar or Prosecutor, of the receipt of a report of misconduct or serious misconduct, including possible unlawful acts by staff and contractors under their respective authority. Such notification does not include revealing the identity of the information source, and such notification must be treated as strictly confidential. Any unauthorized disclosure of this information shall constitute misconduct, for which disciplinary measures may be imposed.

An attempted savings provision was added:

19. The authority of the independent oversight mechanism to initiate a case on its own motion, does not in any way impede the authority or independence granted by the Rome Statute to the Presidency, judges, Registrar or Prosecutor of the Court…

The proposal in the Annex, therefore, was for the IOM to operate as follows. Clause 2 envisaged the IOM receiving and investigating reports of misconduct. By clause 3 any such reports received by the Court (which, it is inferred, includes the OTP) must be submitted to the IOM. By that Clause staff members submitting a report against another staff member “may elect” to submit a copy to (relevantly) the Prosecutor. Clause 17 provided that the IOM “may” notify the Prosecutor of the receipt of a report. Clause 4 required the IOM to transmit the results of investigations to the Prosecutor. The proposal, therefore, did not require or ensure that the Prosecutor be aware of a report against staff and it gave no role to the Prosecutor in dealing with any report. The only mandatory provision was for the IOM to inform the Prosecutor of the outcome of its investigation.

It is arguable, in any event, that references to “management oversight” and “oversight mechanism” import the idea of “superintendence” rather than direct involvement in management and administration (such as dealing with reports of misconduct). That is, the IOM may only concern itself with overall, high level, examination and coordination of the operation of the Court and the interrelationship of its organs, including responding to referrals by the organs themselves, in order to enhance the efficiency and economy of the Court.

The Rome Statute does not properly empower the IOM to deal with alleged misconduct of staff of an organ of the Court.

That role is expressly reserved to (relevantly) the Prosecutor by the terms of Article 42(2) of the Rome Statute. There is a clear and express mandate given to the Prosecutor to take full and independent responsibility for “the management and administration of the Office, including the staff…”—including matters of discipline and alleged misconduct that are part of the management function in any such organisation.

The power of the IOM to assume the “investigations” role described in the Annex is not clear at all and in December 2010 the Assembly resolved to establish a study group on governance of the Court that would address this and other matters “pertaining to the strengthening of the institutional framework … between the Court and the Assembly”.

If it should be the case, however, on a different interpretation of the relevant provisions or under different provisions that may be made, that the IOM does have such power, then any such power must be exercised in a way that is consistent with Article 42(2) of the Rome Statute. For sound reasons of principle and practice, in any matter of alleged misconduct by staff members in the OTP, the Prosecutor must retain and exercise authority to investigate and decide. At the very least, there must be provisions mandating and not merely permitting notification to the Prosecutor and his/her direct involvement in the process of investigation and decision.

1. Suggested Citation for this Comment:

   Nicholas Richard Cowdery, When Dealing with Alleged Misconduct by Staff in the Prosecutor’s Office, the Prosecutor and not the Independent Oversight Mechanism Should Retain and Must Exercise Authority to Investigate and Decide, ICC Forum (May 6, 2011), available at https://iccforum.com/oversight#Cowdery.

   Suggested Citation for this Issue Generally:

   What is the Proper Balance Between Oversight and Independence?, ICC Forum (May 6, 2011), available at https://iccforum.com/oversight.

The lack of a defined role has led to an oversimplification of the ASP (at least in the media) as the “political body” of the ICC. In fact, the numerous tasks assigned to the ASP under the Statute can be divided into three categories: administrative, legislative and operational.

Administrative

The administrative functions of the ASP are mostly set out in article 112 and include: providing management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court; considering reports and activities of the Bureau and taking appropriate action in regard thereto; budgetary matters; and the inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy. The ASP is also responsible for a host of other administrative tasks under the Statute.4

The ASP’s administrative role is relatively uncontroversial in theory, although its functions have turned out to be less so in practice. In pursuance of its administrative functions the ASP established the IOM (discussed below).

Legislative

The ASP’s legislative functions are both specific and general. The ASP was assigned specific “legislative” tasks that could not be completed at Rome. In this sense it was the successor to the Conference (see article 112(2)(a)) and certain “unfinished business” was expressly left to the ASP to conclude (including defining aggression). Other day-to-day “legislative” functions are also assigned to the ASP. In addition to these, the ASP has a general “legislative” authority that flows from the fact that the Rome Statute is a treaty and, as such, is subject to amendment and modification by its member states. In this regard articles 121–125 set out the procedures to be followed in amending the Statute and establish the ASP as the forum for the adoption of amendments.

Operational

The third role of the ASP is the most controversial. Notwithstanding the Court’s independence, the Statute provides for some limited role for the ASP in the operation of the Court. The first is in terms of enforcement. Article 87, read together with article 112(2)(f), recognizes this role. This was controversial throughout the negotiations particularly insofar as its power vis-à-vis non-states parties.5

The Rome Statute also provides—in article 119—that the ASP will play a role in the “settlement of disputes”.6 Article 119, which relates to “general disagreements”, allows for two distinct procedures to be followed in the event of such disagreement:7

First, disputes over the judicial functions of the court must be settled by the court itself;

Secondly, disputes that do not pertain to judicial functions—that arise between two or more state parties—and relate to the interpretation or application of the Statute, shall be referred to the ASP.8 In such circumstances the ASP may (a) seek to settle the dispute itself or; (b) make recommendations on further means of dispute settlement, notably including referral to the International Court of Justice in conformity with the Statute of that Court.

Here too the drafters were careful to make sure the ASP was prevented from considering judicial questions—that role was left to the Court.9

However, there is uncertainty regarding the distinction between disputes relating to “judicial functions” and “other disputes” arising between two or more state parties. In fact, this unassuming distinction was the subject of considerable controversy at the Rome Conference, resulting in four options being presented in the final report of the Preparatory Committee.10

During the course of the IOM debate, when the Prosecutor suggested that disputes over the proper exercise of his veto in respect of IOM investigations be referred to the ASP, it was presumably article 119 that he was invoking. More controversially, the African Union has recommended that the dispute regarding the relationship between articles 27 and 98 of the Rome Statute be referred to the ASP under article 119.11

The IOM controversy: much ado about nothing?

So much for that background snapshot.

Article 112(4) of the Rome Statute states:

The Assembly may 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.

To this end, in November 2009 the 8th ASP established an Independent Oversight Mechanism and decided that while its investigative capacity would be implemented immediately, its inspection and evaluation functions would be phased in subject to a decision of the Assembly at the 9th ASP.12 In this regard it instructed the Bureau to assist in the operationalisation of the IOM’s investigative function, and (in coordination with the Court) prepare a report on the operation of the inspection and evaluation functions.13

The Bureau’s task of creating a framework for the operationalisation of the IOM’s investigative function was, however, far from simple. The Temporary Head of the IOM submitted a draft “IOM Operational Mandate” to the Bureau’s Hague Working Group and the Court organs for comment in August 2010. There were no major objections raised by the Working Group, and the Registry and the Presidency were satisfied with the draft following minor amendments.14 The OTP however took issue with the proprio motu power of the IOM and its effect on prosecutorial independence under article 42 of the Rome Statute, and stated that “for the mandate of the IOM to be fully in agreement with the Rome Statute, it would be necessary that the IOM investigation of the OTP staff be carried out either at the request of the Prosecutor or with his prior agreement”15.

On this basis the Prosecutor proposed that the IOM’s proprio motu powers in respect of the OTP be subject to the authorization of the Prosecutor himself, drawing an analogy with article 15 of the Statute. In the event of a disagreement, the IOM could investigate his conduct under article 46 of the Statute, or alternatively the Prosecutor himself could investigate the matter, failing which the IOM could consider an article 46 investigation. The Prosecutor later revised his position, suggesting that in the event of a dispute over his refusal to authorise the investigation of the IOM of one of his staff, the matter be referred to the ASP for consideration.16 The Prosecutor added practical examples of the possible negative impact on the OTP’s operations that might arise from the abuse of the IOM’s investigative power, not by the IOM itself but rather malicious third parties. Additional disclosure concerns were raised too.17 Notably, concerns were raised about IOM investigations on OTP operations, even if the investigations were justified.

The Temporary Head of the IOM and the Working Group (bar one delegation) did not agree with the Prosecutor’s assertions. In particular, the Working Group was not convinced that the proposed IOM Mandate (without the Prosecutor veto option) infringed upon the independence of the Prosecutor. In this regard they pointed out that article 112(4) of the Rome Statute refers to the establishment of an IOM for the “inspection, evaluation and investigation of the Court,” and in terms of article 34 “identifies the OTP as one of the organs of the Court.”18 Therefore, according to the Working Group:19

[A]rticle 42 provides for the independence of the Prosecutor and his office with respect to the other organs of the Court, but not for the independence of the OTP with respect to the Assembly, especially not in administrative matters. In connection to this, a point was also made that the interpretation of the Rome Statute is primarily the task for the States, since it was the States who adopted the Rome Statute.

Further, the President of the Court and Registry came out in opposition to the Prosecutor’s proposal—which was broadened to apply to IOM investigations of all organs of the Court—stating that they were “not consulted” on the proposed changes to the IOM mandate and wished to “dissociate themselves from them.” Further they stated that “they do not need to be consulted before initiation of investigations for misconduct of judges and staff.”20 In response the OTP argued that it had included the other organs in its proposal for consistency but that, in any event, the argument based on article 42 remained. Notwithstanding the Prosecutor’s objections, the Working Group (with the noted objection of one delegation) presented the Temporary Head of the IOM’s proposal to the 9th ASP for adoption in December 2010.

In his opening address to the 9th ASP in New York, the Prosecutor once again expressed his concerns about the proposed IOM Operational Mandate. In doing so he pulled no punches, noting:21

[T]he IOM mandate proposed includes the possibility to replace the authority of the Prosecutor to start investigations and provides it for the IOM, a subsidiary body of the ASP. This proposal creates the risk of undue interference with the judicial activities of the Office. As explained in our legal memoranda, the Statute establishes that the Prosecutor is accountable before the Assembly, and to protect their independent work, the Office staff is under the full authority of the Prosecutor. Therefore, the proposed mandate for the IOM extends beyond the oversight role envisaged by Article 112 (4) and infringes with the independence of the Office of the Prosecutor guaranteed by the Rome Statute.

The Office considered that the IOM’s proposed mandate has no clear legal and policy basis. The arguments presented during the discussions were contradictory and included references to the UN or ad hoc tribunals, but had no basis in the Statute. As a matter of policy, the Office never received an explanation as to why the Prosecutor could be trusted to investigate Heads of State, but not to investigate the staff of the Office.

The Office considers that an ASP resolution based on an erroneous interpretation of articles 42 and 112 could set a dangerous precedent for future decisions on oversight that may further affect the integrity of the Statute, and would place the entire Rome Statute system at risk.

In the end a compromise was reached and the ASP revised the IOM mandate proposed by the Bureau22 to address the OTP’s concerns, noting that it “shall be kept under review”23. This was done through the inclusion of a procedure for disputes over IOM investigations that provided for recourse to a third-party.24 Notably, the complex procedure introduced into the IOM Operational Mandate by the ASP applies to the Chambers and Registry despite their express desire to “dissociate themselves” from the OTP’s objections. Briefly, the procedure is as follows:25

• In case of an objection by a head of organ that an investigation initiated by the IOM would “undermine judicial or prosecutorial independence of that organ,” the head of the organ shall notify the IOM who must “take into consideration these concerns.”

• If the IOM wishes to proceed regardless, the matter shall be referred to a “third party with judicial or prosecutorial experience appointed by the Bureau.”

• If that third party decides that objection is unfounded the IOM investigation shall continue.

• If the third party decides that the investigation would “undermine judicial or prosecutorial independence of the relevant organ,” then the organ in question must carry out its own investigation and submit a report to the IOM.

• If the IOM is dissatisfied with “the investigation or its outcome” it can seek “consultations with or clarifications from the relevant organ head,” failing which it can “apply its oversight powers to investigate the organ head for failing to properly address the specific concerns of the [IOM] and it can bring the issue, as appropriate, to the attention of the Assembly.”

• If that investigation finds that the organ head’s own investigation was not conducted properly, the IOM must refer the matter back to the third party who shall determine whether the initial investigation of the IOM should proceed.

Throughout this debate both sides were at pains to state their commitment to “judicial and prosecutorial independence”, and the Prosecutor’s ASP speech in particular was cast in such high-minded terms. However, it’s not clear that the issue of “judicial and prosecutorial independence”—collectively “the independence of the Court”—played a significant role (if any) in the Prosecutor’s objections, beyond its obvious rhetorical value.

Leaving aside the question of how one defines “the independence of the Court” (for now), the main thrust of the arguments presented by the OTP related to their organisational autonomy guaranteed under article 42 of the Statute. The dispute was elevated to the level of principle as an issue of the “independence” of the (judicial) Organs of the Court from improper influence. However, when the other organs of the Court distanced themselves from the proposal, (thereby torpedoing any across-the-board claim to a principled objection) the argument of the OTP was reduced to the proper construction of article 42. Importantly, the Prosecutor himself proposed that the ASP be given the power to overturn his decision not to allow the IOM investigation of a member of his staff. It is difficult to see how principled arguments regarding “prosecutorial independence” can survive this compromise suggestion. It is in any event a compromise that is consistent with the Statute: recall that in the Prosecutor’s appeal to the 9th ASP he stated that “the Statute establishes that the Prosecutor is accountable before the Assembly.”

Perhaps then the real debate has more to do with policy than principle. In his speech the Prosecutor notes:

As a matter of policy, the Office never received an explanation as to why the Prosecutor could be trusted to investigate Heads of State, but not to investigate the staff of the Office.

Reframed in this way, the issue becomes why the Prosecutor should be allowed to investigate his staff, rather than the principled objection of why the IOM, the ASP or any other body should not. The final “compromise” negotiated at the 9th ASP demonstrates that the ultimate authority to determine whether an IOM investigation will go ahead lies with a third party, not the Prosecutor. The real difficulty remaining is that the IOM compromise requires that the third party arbiter decide whether the investigation will “undermine judicial or prosecutorial independence of that organ,” a standard that is necessarily abstracted.

Thus, even if the IOM controversy was not truly a dispute about the principle of the “independence of the Court,” it has certainly brought the question of this principle’s relevance vis-à-vis the role and functions of the ASP to the fore (and inspired this excellent discussion question). However, the issue framed as a clash between the ASP and the “independence of the Court” is a red-herring for the following reasons.

Firstly, the “independence of the Court” is a virtue, but notoriously difficult to define.26 The principle of independence is one more readily spotted in its violation, but less so in its observance. There is no better indication of this than the circular definition contained in the IOM’s Operational Mandate adopted at the 9th ASP which states: “Judicial and prosecutorial independence is regarded as the independent performance of judicial or prosecutorial functions”27. This alone makes difficult attempts at drawing conclusions about the appropriate balance to be struck between this principle and the role of the ASP (itself not well defined)—in the abstract no less.

To compound matters, the concept’s meaning is likely to differ across different legal and political contexts. To give a more concrete example: most countries would agree that “prosecutorial independence” is an essential condition for any legal system.28 However, how that independence is best protected, and most meaningfully exercised, differs amongst different legal systems. As but one example, the exercise of discretion by a Prosecutor in civil law systems (where the principe de legalite des poursuites or LegalitätsPrinzip applies) would be highly irregular, whereas it is commonplace in other legal systems. To date, the question of prosecutorial discretion has not been addressed consistently amongst international tribunals either. To establish a Gold Standard for “independence” in these circumstances is likely to be a frustrating exercise.

With this in mind, in characterising the debate as being a choice between “judicial and prosecutorial independence” and the oversight by the ASP (a political body), we should not lose sight of the following. First, threats to this independence are not only exogenous. Some of the most serious threats to judicial independence come from within: i.e. the improper exercise of some discretion given to, or taken by, the Prosecutor or Judges. We must be alive to the danger of presenting the external (political) influence as the only threat to judicial independence, and presume that left alone judges and prosecutors will always act within the law. Second, too little external oversight can lead to outrages against judicial independence just as too much can.

In the result the question posed—the proper balance between the independence of the Court and the oversight role of the ASP under article 112—cannot be answered profitably in the abstract. Nevertheless, what the debate regarding the IOM reveals fruitfully are questions about the Court’s view of the ASP’s role, and how the ASP members see that body’s role in relation to the Court. These questions are situated within the broader, emerging debate regarding this relationship.

The Broader Context: An expanded role for the ASP?

The Prosecutor noted in his opening address to the ASP:

In 2011, the Assembly will discuss a constitutional issue that will define the future of the Rome Statute: the definition of the proper scope of the oversight role of the Assembly of States Parties, as envisioned in Article 112 of the Statute.

For purposes of this note it is thus helpful that the Prosecutor has linked the IOM with the wider debate emerging regarding the institutional structure and governance framework of the Court.29 This wider debate is of significance, demonstrated for example by the recent decision of the ASP Assembly in New York to adopt a resolution establishing a “Study Group on Governance.”30 The Study Group will consider, inter alia, “the strengthening of the institutional framework both within the Court and between the Court and the Assembly”31. The Group’s aims is to enhance the “efficiency and effectiveness of the Court” whilst recognising the “fundamental importance of the judicial independence of the Court to the integrity of the Rome Statute system.” The Working Group will report its “findings and recommendations”—through the Bureau—to the 10th ASP.32

While civil society has expressed concern that this will be a cost-cutting exercise, the relationship between the Court and the ASP—and necessarily the proper role of the latter—will have to be discussed. The IOM controversy has usefully revealed how differently the Court (in this case the OTP, as distinct from the Registry and the Presidency of the Court) and the ASP viewed this role in the context of administration. As noted above, the preoccupation of the drafters of the Rome Statute was to avoid an ASP Role in the “judicial” aspects of the Court. Through the IOM debate the OTP has attempted not just to preserve “judicial” autonomy, but to assert “complete administrative autonomy” as well. Conversely, according to the Working Group:33

[A]rticle 42 provides for the independence of the Prosecutor and his office with respect to the other organs of the Court, but not for the independence of the OTP with respect to the Assembly, especially not in administrative matters.

In this regard, if the Prosecutor was guilty, during the course of the IOM debate, of pushing into the administrative autonomy of the ASP, the ASP—or members thereof—might be accused of using “administrative issues” as subterfuge for pushing into the realm of judicial functions of the Court. In this regard a recent report by FIDH notes:34

[O]ver the years, the [Committee on Budgets and Finance] has stretched its authority to make recommendations on policy matters, thus going beyond the financial and budgetary nature of its mandate. FIDH has raised concerns about this way of proceeding, firstly, because the Committee is composed of financial experts whom, in most cases, lack special expertise on judicial matters. Secondly, the Committee’s consideration of such aspects raises questions as to the limits and the nature of the Committee’s mandate…For example, in its report of its fifteenth session, the CBF made observations on reparations proceedings and Chambers’ decisions. In the past, the Committee also made reference to the financial implication of judicial decisions and suggested that core elements of the judicial proceedings could be “cost-drivers”. In this regard, FIDH would like to recall that judicial independence must be upheld and that interpretation of the Rome Statute lies solely with the judges, according to basic legal principles.

Suffice it to say that this suggests that the upcoming debate over the appropriate role of the ASP within the Court’s administration and operation will be an interesting one.

In our view, there is another scenario to consider with regard to the future role of the ASP which is related to but which may dwarf the controversy over the IOM issue: the ASP as a political counterpoint to the Security Council.

From an African perspective, frustration over the role that the Security Council plays, both in principle and practice, might lead to a continental push for an expanded role for the ASP as a political counterpoint to the Council. African states have already proposed an amendment to article 16 of the Rome Statute that gives the UN General Assembly the power of deferral in the event of inaction by the Security Council, and continue to push for its adoption.35 The primary legal obstacle faced by proponents of the current draft is the question of authority, as article 16 relies on the Security Council’s Chapter VII mandate as the guardian of international peace and security. The amendment attempts (optimistically) to overcome this problem by relying on the controversial Uniting for Peace Resolution, adopted by the UN General Assembly in 1950. In the context of the article 16 amendment, it purports to grant the General Assembly authority to supplant the Security Council when the latter refuses to be moved by calls to defer investigations before the ICC. In the final analysis, this is probably the amendment’s death knell; as even sympathetic countries are unlikely to support employing the controversial Uniting for Peace Resolution in this legally questionable manner.

In light of this, it might validly be asked whether Chapter VII authority is necessary for a deferral. The current draft of the article 16 amendment presumes it is, but this is not necessarily the case in all (or most) circumstances. If the case in question came into the purview of the court by way of a Security Council referral under article 13(b)—such as the Sudan situation—then arguably only a Chapter VII based decision would suffice in deferring such proceedings. However, if a case comes before the Court by way of the normal procedures—self-referral by state parties or proprio motu investigations by the ICC prosecutor—there is no reason a priori why Chapter VII authority would be required to defer a prosecution. Given the context in which the amendment emerged—failed attempts to defer proceedings against al-Bashir who was brought into the court’s remit by way of Chapter VII-based article 13(b) referral—it is not surprising that it attempts to amend deferral proceedings in this manner. But to the extent that the amendment stands independently of the al-Bashir matter, it might be altered to exclude reference to Chapter VII and the Uniting for Peace Resolution and thereby overcome the difficulty of authority.

In this manner, the amendment could conceivably be altered to require that the ASP, rather than the General Assembly, decide to defer the matter. In this regard it is notable that African states parties have already indicated their preference for using the ASP to settle disputes regarding articles 27 and 98. For those states that see the Security Council as legitimate, the idea of relinquishing the Council’s exclusive role under article 16 to defer proceedings in the name of international peace and security to the ASP is unconscionable no doubt. However, for those states that not only view the Council as unrepresentative, but also hostile to African requests for deferrals, expanding the role of the ASP in this manner—as a more democratic body—is corrective.

These are difficult questions, also of governance. Their answers await another day.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Adriaan Bos, Assembly of States Parties in A. Cassese et al. (eds), The Rome Statute of the International Criminal Court: A commentary, 2002 p. 300. ↩

2. 2.

   See articles 2, 3, 9, 36, 42, 43, 44, 49, 51, 79, 113, 117, 119, 121, 122, and 123 of the Rome Statute. ↩

3. 3.

   Bos, supra note 1, p. 305. Schabas, infra note 4, p. 1121–1122. ↩

4. 4.

   See William Schabas, The International Criminal Court: a Commentary on the Rome Statute, 2010, p. 1124. ↩

5. 5.

   Id. at 1123–1124. ↩

6. 6.

   Article 119 of the Rome Statute:

   1. Any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court.

   2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court. ↩

7. 7.

   Id. ↩

8. 8.

   Provided that such matters are not settled by negotiation within three months of their commencement. ↩

9. 9.

   In this regard Pellet notes: “[P]aragraph 1 is based on substantial criterion (disputes ‘concerning the judicial functions of the Court’), while paragraph 2 lies on a ratione personae distinction (disputes ‘between two or more States Parties’). However, it must be noted that the first criterion seems to have precedence over the second, since paragraph 2 expressly reserves the competence of the Assembly of States Parties over any disputes other than those mentioned in paragraph 1, which means that, should two or more State Parties have a dispute concerning the judicial functions of the Court, the latter would be competent to rule on the dispute.” Pellet Settlement of disputes in A. Cassese et al. (eds) supra note 1 at 1843. ↩

10. 10.

    Report of the PrepCom on the Establishment of the ICC, A/CONF 183/2/Add 1 (14 April 1998) 162, art 108. ↩

11. 11.

    See Recommendations of the Ministerial Meeting on the Rome Statute of the International Criminal Court 6 November 2009, Addis Ababa Min/ICC/Legal/Rpt (II). Recommendation 5 states: “State Parties should consider having recourse to the provisions of Article 119 of the Statute and Rule 195 of the Rules of Procedure and Evidence of the ICC to settle disputes regarding the implementation of Articles 27 and 98 of the Rome Statute.” The recommendations were endorsed by the AU Assembly in January 2010. See African Union, Decision on the Report of the Second Meeting of States Parties to the Rome Statute of the International Criminal Court (ICC) Doc.Assembly/AU/8(XIV), January 2010. See further Max Du Plessis & Christopher Gevers, Making Amend(ments): Africa and the International Criminal Court from 2009 to 2010, South African Yearbook of International Law (2010), p. 1. [hereinafter cited as Making Amend(ments)] ↩

12. 12.

    Establishment of an independent oversight mechanism, ICC-ASP/8/Res.1, 26 November 2009. ↩

13. 13.

    Pursuant to this, at the 9th ASP the Bureau raised concerns—shared by the Court, and the Committee on Budget and Finance—that the IOM’s “inspection and evaluation” functions would overlap with the operations of existing oversight bodies, leading to unnecessary duplication and possible conflict. In the end the ASP endorsed the Bureau’s decision to commission an “assurance mapping study into the oversight mechanisms of the Court,” which will be discussed by the ASP upon its completion. Decisions of the 16th Meeting of the Bureau, 28 October 2010; infra note 23, ¶ 6. See further infra note 14, ¶¶ 23–25; Report on the Committee on Budget and Finance on the work of its fifteenth session, ICC-ASP/9/15, ¶¶ 26–29. ↩

14. 14.

    Report of the Bureau on the Independent Oversight Mechanism, ICC-ASP/9/31, 19 November 2010, ¶ 42. ↩

15. 15.

    Id. at ¶ 45. ↩

16. 16.

    Id. at ¶ 55. ↩

17. 17.

    Id. at ¶ 47. ↩

18. 18.

    Id. at ¶ 53. ↩

19. 19.

    Id. ↩

20. 20.

    Comments of the President of the Court and the Registrar on the proposed OTP amendments to the IOM Operation Mandate, dated 22 October 2010. ↩

21. 21.

    Mr. Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, Address to the Assembly of States Parties Ninth Session of the Assembly of States Parties, 6 December 2006. ↩

22. 22.

    See ICC-ASP/9/31, supra note 14, Annex. I. ↩

23. 23.

    Independent Oversight Mechanism, Resolution ICC-ASP/9/Res.5, ¶ 2. ↩

24. 24.

    Notably, Human Rights Watch recommended that the ASP “Defer adoption of the IOM’s operational mandate or only provisionally adopt the mandate until the manual of procedures has been drafted and presented for adoption.” ↩

25. 25.

    Resolution ICC-ASP/9/Res.5, supra note 23, Annex I, ¶¶ 20–25. ↩

26. 26.

    In this regard “the Court” includes both the judiciary and the prosecution, although the independence of these two bodies are not always understood the same way. ↩

27. 27.

    Resolution ICC-ASP/9/Res.5, supra note 23, Annex I, note 7. ↩

28. 28.

    See Carmichele v Minister of Safety & Security 2001 (4) SA 938 (CC) (South Africa), Sharma v Antoine & Others [2006] UKPC 57 (United Kingdom), Krieger v Law Society of Alberta [2002] 3 SCR 372 (Canada) and Imbler v Pachtman 424 US 409 (1976) (United States of America). ↩

29. 29.

    For example the “assurance mapping study” regarding the IOM will be discussed within the newly established Study Group on Governance. See Independent Oversight Mechanism, Resolution ICC-ASP/9/Res.5, 10 December 2010, ¶ 6. ↩

30. 30.

    Establishment of a study group on governance, ICC-ASP/9/Res.2, 10 December 2010. ↩

31. 31.

    Id. at ¶ 3. ↩

32. 32.

    Id. at ¶¶ 5–6. ↩

33. 33.

    ICC-ASP/9/31, supra note 14, at ¶ 53. ↩

34. 34.

    FIDH, Position Paper, Ninth session of the ICC Assembly of States Parties (2010), p. 17. ↩

35. 35.

    The amendment proposal was again endorsed by the AU Assembly at its 16th Ordinary Session in January 2011. See African Union, Decision on the Implementation of the Decisions on the International Criminal Court, Assembly/AU/ Dec.334(XVI), 30–31 January 2011. For full discussion, see Dapo Akande, Max du Plessis and Charles Jalloh, An African expert study on the AU concerns about article 16 of the Rome Statute of the ICC, October 2010, available online, and Making Amend(ments), supra note 11. ↩

36. Suggested Citation for this Comment:

    Max du Plessis & Christopher Gevers, The Independent Oversight Mechanism Argument is Not Merely About Administrative Functions, but is Situated Within a Broader Debate Over the Role of the Assembly of States Parties, ICC Forum (May 6, 2011), available at https://iccforum.com/oversight#du-Plessis.

    Suggested Citation for this Issue Generally:

    What is the Proper Balance Between Oversight and Independence?, ICC Forum (May 6, 2011), available at https://iccforum.com/oversight.

In order to effectively answer this question, it would seem prudent to briefly review the background to the establishment of the investigative function of the IOM to help inform how Article 112 might evolve in practice.

The impetus behind the establishment of the investigative function of the IOM can be found in the strong desire by the Assembly to ensure: (a) the protection of the Court’s image from public scandal; (b) that impunity would not be tolerated with respect to misconduct of staff; (c) that all staff would have their right to due process fully respected; and, (d) all complaints would be investigated and an effective remedy provided, including through national prosecution.

With regard to the risk of public scandal, many states were aware that in recent years the United Nations had faced an increasing number of incidents of criminal misconduct including sexual exploitation and abuse by UN staff and personnel in peacekeeping operations. In this context, and in view of the increase in the Court’s field operations, the possibility and/or necessity for an independent oversight mechanism for the Court to deal with criminal accountability of the Court’s staff deployed in the field was raised in 2005 during the fourth session of the Assembly which subsequently adopted resolution ICC-ASP/4/Res.4 that mandated the Assembly to invite the Court, in consultation with the Bureau, to submit proposals about an “independent oversight mechanism”. Widespread concern to protect the Court’s image led in turn to a review of the Court’s disciplinary procedures against staff for any misconduct, including criminal misconduct to ensure that any investigations conducted would hold up to external scrutiny, if challenged.

The results of the inquiry found that the Court’s investigative function was diffused amongst different entities with staff being taken away from their busy schedules to participate in ad hoc investigations of which they were neither trained nor qualified to conduct leading to the risks of delays in investigations, mishandling of evidence, overlooking significant factors and/or committing procedural irregularities which would render evidence inadmissible in a court.

In respect of elected officials, investigations of alleged misconduct were conducted by members of the Court’s judiciary leading to the perception at least, of one rule for the staff and another for elected officials.

In consequence of these findings, broad agreement quickly emerged within the Assembly on the merit of establishing an enhanced professional investigative capacity to conduct investigations of any type of misconduct, including criminal misconduct which would apply to staff, elected officials and contractors. It was agreed that the mechanism to be adopted should be light and correspond to the needs of the Court while not significantly increasing the budget. Only through the establishment of an independent oversight mechanism would the image of the Court be safeguarded and the Court assisted in providing fair internal justice and convincingly so.

Despite the Court’s request for the newly established investigative capacity to be located within the Court’s structure, the Assembly mindful of the need to entrench the independence of the oversight mechanism refused. It was further decided to set up a separate programme budget for the IOM and to establish it as a subsidiary body of the Assembly with independent reporting lines. To further strengthen the independence of the IOM and to demonstrate its “teeth” the Assembly agreed to confer proprio motu powers and a “whistleblowers” capacity.

The latest discussions at the ninth Assembly held in December 2010 regarding the adoption of the operational mandate of the investigative capacity of the IOM has brought into sharp focus the potential for conflict between the proper scope of the mandate and Article 42 (2) of the Rome Statute which guarantees the independence of the Office of the Prosecutor over the management and administration of the office, including the staff, facilities and other resources thereof. In light of concerns raised by the Prosecutor regarding the mechanism’s mandate the Assembly amended the proposal to ensure respect for judicial and prosecutorial independence by including a referral procedure to a third party arbiter in the event that an objection is made by a head of a Court organ that an investigation initiated by the IOM on its own motion would undermine the judicial or prosecutorial independence of that organ.

So how can these previous developments help to inform us regarding where to draw the proper balance between the independence of the Court and the oversight role of the Assembly regarding the Court’s administration under Article 112 of the Rome Statute?

In order to answer this question it is necessary to examine what is the object and purpose of “Oversight” and what elements ordinarily constitute “Oversight”. The “Oversight” of international public organisations in management terms is generally seen as a positive activity, helping to promote good governance through the accountability and monitoring of both internal and external aspects of the organisation. Effective oversight can help contribute to building in a systematic manner professionalism, integrity, credibility, stability and transparency within an organisation and to combating fraud, waste and abuse. This is especially necessary for a new organisation like the Court which is not only a judicial body but also an institution committed to the achieving the highest standards of public administration. Effective oversight will also help to silence many of the Court’s critics who often see international organisations as overblown wasteful bureaucracies operating without any adequate checks or balances.

The various elements usually associated with effective oversight have been described by the United Nations Joint Inspection Unit to include: audit, evaluation, investigation, inspection and monitoring.

In many international public organisations these functions are either centralised in one unit or diffused through many smaller subsidiary bodies. The choice of oversight model in the end should depend on the nature, culture and structure of the organisation.

In my view the potential for conflict between the independence of the Court and the oversight role of the Assembly regarding the Court’s administration is a very real and tangible one as demonstrated recently at the ninth Assembly. That being said, the Assembly’s successful resolution of the Prosecutor’s concerns should provide confidence that such matters can be resolved in a sensible and grown up manner.

On the basis that “prevention is always better than cure” there are a number of steps that should be taken now to further minimise the scope for potential conflict. These steps include the desirability of defining in advance the scope of “administration” and what is meant by enhancing “efficiency and economy”.

Definitions help to establish red lines and to clearly ring fence the oversight function from infringing the independence of prosecutorial and judicial independence. Given the judicial nature of the organisation, the line between policy administration and judicial function is not always an easy one to draw as reflected in the decision of the Presidency regarding the funding of family visits which was subsequently submitted to the CBF and the Assembly itself. The likelihood of judicial functions inadvertently colliding with financial oversight is therefore never far from the surface and only through a scrupulous approach to the Assembly’s proper oversight function will unseemly conflicts be avoided and a proper balance developed.

Additionally, the Assembly needs to complete the “mapping exercise” commissioned at its ninth session of the Court’s existing internal and external oversight bodies before creating any new ones to ensure that it approaches the completion of its oversight machinery in a coherent, transparent and structured manner to avoid duplication while at the same time putting in place a holistic mechanism that is cost effective, fit for purpose and transparent.

In conclusion, what is the proper balance between the independence of the Court and the oversight role of the Assembly regarding the Court’s administration is still very much a work in progress and will remain so for some time as the Court continues to evolve and develop in the years ahead. In this context, it is worth recalling that the Court has not yet completed its first trial! However, in order to embark on this journey in the right manner it seems to me that it is important for the Assembly to identify upfront what it expects to achieve through its suite of oversight bodies and to discuss this candidly with Court officials and other civil society stakeholders. Through a co-operative and consultative approach to this question, as adopted by the facilitator during the discussions leading to the establishment of the IOM investigative capacity, the remaining oversight functions as previewed under Article 112 can be implemented in a manner that contributes effectively to developing a proper balance in terms of the Assembly’s expectations of its oversight functions vis a vis the Court’s judicial and prosecutorial independence.

Through a respectful dialogue with all relevant stakeholders and a shared recognition that a neutral and independent oversight mechanism is in the best interests of the Court, a proper balance between oversight and independence can be achieved. Otherwise, the Assembly risks micro-management and undue interference in respect of the Court’s judicial and prosecutorial activities.

The views expressed in this brief essay are personal to the author and are not necessarily shared by the Commonwealth Secretariat or any other organisation of the author’s affiliation.

1. Suggested Citation for this Comment:

   Akbar Khan, The Real Issue Concerns Delimitation of the Court’s Independence and the Oversight Role of the Assembly Which can only be Decided Through a Constructive Dialogue Between the Assembly, Court Officials and Civil Society on the Expectations of Oversight, ICC Forum (May 6, 2011), available at https://iccforum.com/oversight#Khan.

   Suggested Citation for this Issue Generally:

   What is the Proper Balance Between Oversight and Independence?, ICC Forum (May 6, 2011), available at https://iccforum.com/oversight.

Argument

Article 112 of the Rome Statute epitomizes the fact that the International Criminal Court, as a judicial body, operates within an international political environment, slightly analogous to the way national justice systems exist within the framework of the government of a State.1 The Assembly of States performs a number of important managerial, administrative, financial and legislative functions which are enumerated in the provision. As the Assembly, consisting of States’ representatives, only convenes twice a year, it must outsource and delegate its daily functions, including control and oversight of the Court, to a permanent, subsidiary body.2 To that purpose, Article 112, s. 4 of the Rome Statute empowers the Assembly 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.” The final part of the sentence clearly refers to the powers of the Assembly within the realm of management control and oversight, mentioned in Article 112, s. 2, sub b. The proper limits of this oversight have been a matter of some controversy from the very start, as any interference with the judicial functions of the Court might impinge on its independence. Adriaan Bos has poignantly observed that “the essential question with regard to this paragraph is the delimitation between the judicial and administrative part of the management.”3

Over the last years, efforts have been made to establish such an independent oversight mechanism.4 The Bureau of the Assembly of states has launched a study on the issue on the basis of a mandate from the Assembly.5 The study identifies the main function of the IOM as “to ensure that staff misconduct does not go unpunished, that staff have a right to due process, and that complaints are investigated and an effective remedy provided.”6 The language suggests that mere internal control of staff conduct would not suffice and cannot be trusted, as the Court’s institutions either might be tempted to shield their staff , or would not be unbiased in case of a conflict between staff member and institution. And indeed the study candidly avows that, as long as the Court has no independent oversight mechanism, it can only deal with misconduct internally, “which is not objectively credible.”7

Obviously, this is a highly sensitive matter. From a broader perspective, the dilemma can be sketched as follows. On the one hand, the Rome Statute is a consensual instrument. It follows that the Court derives its mandate from the States Parties and that it is accountable to the Assembly of States. On the other hand, however, precisely because the core crimes under the jurisdiction of the Court involve system criminality, in which state officials are often implicated as perpetrators, the Court’s organs must possess operational independence. The Court’s organs should not only enjoy this independence inter se, but also in respect of the Assembly of States. As far as the Prosecutor’s position is concerned, this principle is enshrined in Article 42 of the Rome Statute. These opposite interests require delicate balancing.

Recent proposals to establish an Independent Oversight Mechanism have provoked controversies between the Prosecutor’s Office and the Assembly of States.8 In the opinion of the present author, the balance of powers, at least initially, shifted strongly, and arguably too strongly, in favour of the IOM (as representative of the Assembly of States) and consequently to the detriment of the Prosecutor’s Office. One of the major bones of contention has been whether the IOM should have the power to start investigations into the misconduct of staff members of the Office of the Prosecutor, without prior authorization of the Prosecutor. The Prosecutor’s Office has vigorously defended the need for such prior authorization.9 It has even been suggested that it should be left to the discretion of the IOM to decide whether the Prosecutor should be informed about reports on the misconduct of his staff members.10

To the present author it is not clear why the Prosecutor’s Office is ostracized to such an extent. Such arrangements may run counter to the well-established principle of criminal law that all interested parties should be informed and heard on allegations ( audi et alteram partem) . Besides, they blatantly ignore that the Prosecutor is in the best position to evaluate whether allegations may interfere with the Prosecutor’s Office’s operational independence. After all, such risk is by no means imaginary. Because of the sensitive nature of their work, staff members are exposed to frivolous, biased and “bad faith” allegations, made by those who have a stake in obstructing investigations.11 Some states may have an interest in the disruption of the OTP’s activities and may therefore be tempted to sustain accusations against staff members.

To be sure, an ensuing Draft Resolution on the Independent Oversight Mechanism by the Assembly of States strikes a more conciliatory tone and seeks to meet at least a number of the objections of the Prosecutor.12 The Resolution indicates the parameters of the IOM’s mandate, defining the concept of ‘misconduct’, on which the IOM may receive and investigate reports and excluding from the IOM’s ambit “contractual disputes or human resource management issues, including work performance.”13 It is not immediately clear what the final sentence entails. Surely it does not imply all the activities which staff members carry out within the context of their appointment, because that would render the IOM largely redundant. Probably, the phrase alludes to disagreements between the Prosecutor and staff members on the proper execution of tasks and assignments which do not reach the level of ‘misconduct’.

In two respects the Resolution endeavours to meet the Prosecutor’s concerns at least half way. Firstly, it stipulates that the Court’s Organs, including the Prosecutor, shall be notified “of the receipt of a report that merits an investigation of (serious) misconduct, including possible unlawful acts, by staff and contractors under their respective authority.”14 Secondly, it acknowledges the Prosecutor’s concerns that investigations by the IOM may jeopardize the Prosecutor’s Office independence. It guarantees that the authority of the IOM to initiate a case does not in any way impede the authority or independence (…) of the Prosecutor.”15 It allows the Prosecutor to object to an investigation which he considers prejudicial to his independence.16 And it provides for dispute resolution by a “third party with judicial or prosecutorial experience appointed by the Bureau of the Assembly of States parties.”17

It remains to be seen whether this compromise—though certainly an improvement when compared with previous proposals—will dispel all the Prosecutor’s qualms. For one thing, the Draft Resolution provides that the identity of the information source should not be revealed.18 This confidentiality rule may hamper the Prosecutor’s assessment of the reliability of the source or any inquiries into attempts to tarnish the reputation of staff members. However, the protection of identity is lifted when “a staff member or other person (…) submits a knowingly or willfully reckless report to the office.”19 Of greater importance is the fact that the Draft Resolution only partially redresses the imbalance. After all, the Resolution, while lending a voice to the Prosecutor does not accommodate the latter’s wish that his authorization is required before an investigation can proceed.

At first blush, the Prosecutor’s proposition appears to tip the balance of powers and responsibilities in the other direction. However, it is predicated on a two tier construction of accountability, sustained by the Rome Statute itself: the staff of the Prosecutor’s Office is accountable to the Prosecutor while the Prosecutor is accountable to the Assembly of States Parties.20 The risks that the Prosecutor will abuse his powers or overstep his mandate are slight and can easily be repaired. If he were to obstruct unreasonably investigations by the IOM, his accountability towards the ASP could come into question. Article 47 of the Statute provides that a Prosecutor who has committed misconduct of a less serious nature (than that set out in article 46, ¶ 1), shall be subject to disciplinary measures, in accordance with the Rules of Procedure and Evidence. In this way, the Assembly can exercise control over a Prosecutor who is adamant to co-operate with an investigation into well-founded allegations.

Seen from this perspective, the Prosecutor’s demand that IOM investigations require his authorization is not too bold, nor too far-fetched.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   William Schabas, The International Criminal Court; A Commentary on the Rome Statute, Oxford: Oxford University Press 2010, 1117. ↩

2. 2.

   S. Rama Rao, Article 112, in: Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court—Observers’ Notes, Article by Article, C.H. Beck/ Hart/ Nomos, München 2008, 1680, Margin 10. ↩

3. 3.

   Adriaan Bos, Assembly of States Parties, in: A. Cassese, P. Gaeta, J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford: Oxford University Press, 2002, 305. ↩

4. 4.

   At its eight session, the Assembly adopted resolution ICC-ASP/8/Res.1, by which it announced to establish an independent oversight mechanism in accordance with article 112, paragraph 4 of the Rome Statute. ↩

5. 5.

   Report of the Bureau on an independent oversight mechanism, ICC-ASP/7/28 (November 4, 2008). ↩

6. 6.

   Id. at ¶ 5. ↩

7. 7.

   Id. at ¶ 15. ↩

8. 8.

   Bureau of the Assembly of States Parties, The Hague Working Group, Report on the Independent Oversight Mechanism, Draft Report of the Hague Working Group on the Independent Oversight Mechanism, dated 5 November 2010, as adopted by HWG for consideration by the Bureau. The Prosecutor’s Office’s critical response to this Draft Report was summarized in a Legal Memorandum on the IOM mandate, of 19 November 2010 [hereinafter cited as Legal Memorandum]. ↩

9. 9.

   Legal Memorandum , id. at ¶¶ 2, 17. ↩

10. 10.

    Id. at ¶ 19, referring to ¶¶ 11–17 of the IOM mandate. ↩

11. 11.

    This objection is made in ¶ 5, id. ↩

12. 12.

    Assembly of States Parties, Draft Resolution on the Independent Oversight Mechanism, ICC-ASP/9/L.6/Rev.1, 10 December 2010 [hereinafter cited as Draft Resolution]. ↩

13. 13.

    ‘Misconduct’ includes “any act or omission by elected officials, staff members or contractors in violation of their obligations to the Court pursuant to the Rome Statute and its implementing instruments, Staff and Financial Regulations and Rules, relevant administrative issuances and contractual agreements as appropriate“. Draft Resolution, Annex Draft Operational Mandate of the Independent Oversight Mechanism, ¶ 2, Footnote 2. ↩

14. 14.

    Id. Draft Resolution, ¶ 18. ↩

15. 15.

    Id. at ¶ 20. ↩

16. 16.

    Id. at ¶ 21. ↩

17. 17.

    Id. at ¶ 21. ↩

18. 18.

    Id. at ¶ 18. ↩

19. 19.

    Id. at ¶ 26, c). ↩

20. 20.

    Legal Memorandum , supra note 8, at ¶ 37. ↩

21. Suggested Citation for this Comment:

    Harmen van der Wilt, The Demand of the Prosecutor of the International Criminal Court that any Investigation by the Independent Oversight Mechanism into Alleged Misconduct of his Staff Members Requires his Prior Authorization is not Unreasonable or Far-fetched, ICC Forum (May 6, 2011), available at https://iccforum.com/oversight#van-der-Wilt.

    Suggested Citation for this Issue Generally:

    What is the Proper Balance Between Oversight and Independence?, ICC Forum (May 6, 2011), available at https://iccforum.com/oversight.