Luis Moreno-Ocampo Former ICC Prosecutor

Topic for May 2011 – September 2011

Oversight Question This debate addresses a constitutional issue: What is the proper balance between the independence of the International Criminal Court (the “Court”) and the oversight role of the Assembly of States Parties (the “Assembly”) regarding the Court’s administration under Article 112 of the Rome Statute?

During 2010, there was a discussion on the proper scope of the mandate of an Independent Oversight Mechanism (“IOM”) established as a subsidiary body of the Assembly to enhance the Court’s “efficiency and economy” pursuant to article 112(4) vis-à-vis article 42(2) that establishes and guarantees the independence of the Office of the Prosecutor (the “OTP”). The debate was intense. The Prosecutor, in his remarks before the Assembly, said that the original proposal on the IOM mandate “create[d] the risk of undue interference with the judicial activities of the Office.” States Parties, noting these concerns, amended the proposal to ensure respect for judicial and prosecutorial independence.

During 2011, the Assembly has to define the proper scope of its own oversight mandate and that of its different subsidiary bodies, such as the Committee on Budget and Finance (“CBF”), the IOM, the independent External Auditor, and the Audit Committee.

Legal Framework

Article 112(2)(b) of the Rome Statute (“the Statute”) provides that the Assembly shall provide management oversight to the Presidency, the Prosecutor, and the Registrar regarding the administration of the Court.

Article 112(4) of the Statute provides that 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.

Article 42(1) of the Statute provides that the Office of the Prosecutor shall act independently as a separate organ of the Court and Article 42(2) provides that the Office shall be headed by the Prosecutor, who shall have full authority over the management and administration of the Office, including the staff, facilities, and other resources.

The Issues

Effective oversight is crucial to help the Court accomplish its objectives by bringing a systematic, disciplined approach to evaluate and improve “the efficiency and economy” of the Court. It should assist the Assembly and the different organs of the Court in the effective discharge of their responsibilities.

At the same time, the independence of the OTP is critical to the credibility of the Court and is one of the pillars upon which the Court is founded.

The establishment of an IOM by the Assembly has raised complex questions about the proper balance between the independence of the OTP and the oversight role of the IOM: What does oversight mean? How does one structure and mandate an oversight mechanism in the context of the ICC? How does one balance oversight and the independence of the OTP, or the Court in general?

Moreover, in December 2010, the Assembly adopted a Resolution on the establishment of a study group on governance, to deal with issues which “include, but are not limited to, matters pertaining to the strengthening of the institutional framework (…) between the Court and the Assembly (…).”

The Assembly has also decided to commission an assurance mapping process, which would examine the existing oversight functions performed by various bodies, internal and external to the Court.

There are few scholars that focus their research in the crucial matter. Debate on this matter will enhance understanding of these complex issues and assist and possibly guide the process going forward.