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- Alma Pekmezovic: The ICC Prosecutor has recently submitted a request to the Pre-Trial Chamber of the ICC to authorize an investigation into crimes committed in Côte d’Ivoire. The post-election violence in the Ivorian territory led to serious crimes including murder of civilians, rape and other sexual violence, arbitrary detentions and the use of child soldiers. The decision of the ICC Prosecutor to act on his initiative and ask the Pre-Trial Chamber for permission to investigate the human rights violations in... (more)
- BBM: It is essential that the ICC maintain its independence, actual and perceived. The role of ASP having oversight over the Court to facilitate efficiency and economy is a poor idea, although pursuant to Art. 112 (4). The dangers as I see it, are lack of independence, and the ICC taking on a role similar to the ICJ with respect to its advisory opinions. As we know the ICJ finds itself in a catch 22 situation with requests for advisory opinions put forward by the UNGA. In this case the ICJ... (more)
- danterzian: The IOM Operational Mandate’s proposed oversight mechanism is a constitutional restriction of prosecutorial independence. Introduction Article 112(4) of the Rome Statute grants the Assembly of States Parties (“Assembly”) the discretion to “establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and... (more)
- davidlee211: The IOM may not be needed for financial supervision or administrative management of the ICC, but it would be significantly beneficial to the Court for oversight of misconduct and making recommendations to the ASP. Introduction The general concept of judicial or prosecutorial independence is often cited as a justification to minimize the need for oversight of the International Criminal Court (“ICC” or “... (more)
- Cecilia: The Independent Oversight Mechanism will consume the resources of the International Criminal Court and will adversely affect the court’s ability to perform its functions effectively. Introduction The Independent Oversight Mechanism as envisaged by the Rome Statute could potentially serve an important function in enhancing the International Criminal Court’s efficiency and economy. However, the mechanism... (more)
- Scott McDonald: The creation of the Independent Oversight Mechanism (IOM) presents a new set of challenges and opportunities for the International Criminal Court (ICC). In order to capitalize on the benefits that the IOM may be able to provide, the Assembly of States Parties (ASP) must ensure that it is built upon a solid foundation: a properly tailored mandate. The Rome Statute provision that allowed the ASP to create... (more)
- G. L.: I. Introduction During the Ninth Session of the Assembly of States Parties (“ASP”), the Independent Oversight Mechanism (“IOM”) became operationalized in its investigative function. However, the IOM, as it is currently structured, would be redundant in light of existing institutional checks in the International Criminal Court (“ICC”). The IOM’s functions are... (more)
- Alma Pekmezovic: Introduction There are two dominant theories that inform the current debate. The first theory focuses on agency costs, while the second makes the concept of trusteeship the focal point of the analysis. In this essay, I will argue that the agency framework is not appropriate in the context of the ICC. The Trusteeship Model Under the trusteeship model, trustees are actors who are given authority to make meaningful... (more)
Comment on the 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?”
The ICC Prosecutor has recently submitted a request to the Pre-Trial Chamber of the ICC to authorize an investigation into crimes committed in Côte d’Ivoire. The post-election violence in the Ivorian territory led to serious crimes including murder of civilians, rape and other sexual violence, arbitrary detentions and the use of child soldiers.
The decision of the ICC Prosecutor to act on his initiative and ask the Pre-Trial Chamber for permission to investigate the human rights violations in Côte d’Ivoire shows that international law can work. It is an important step in holding those responsible for these violations to account.
Côte d’Ivoire is not a party to the Rome Statute. However, the government of Côte d’Ivoire accepted the jurisdiction of the Court in 2003 for crimes committed Côte d’Ivoire since 19 September 2002. In 2010, the President of Côte d’Ivoire re-affirmed the jurisdiction of the Court.
The Prosecutor indicated in his request that there is a reasonable basis to believe that possible war crimes and crimes against humanity have been committed in Côte d’Ivoire. A disputed presidential election in November 2010 is believed to have led to the death of at least 3,000 people. If the Pre-Trial Chamber authorizes the request, the ICC will have an opportunity to deliver justice to the victims of Ivory Coast and advance human rights in the territory.
It is essential that the ICC maintain its independence, actual and perceived. The role of ASP having oversight over the Court to facilitate efficiency and economy is a poor idea, although pursuant to Art. 112 (4).
The dangers as I see it, are lack of independence, and the ICC taking on a role similar to the ICJ with respect to its advisory opinions. As we know the ICJ finds itself in a catch 22 situation with requests for advisory opinions put forward by the UNGA. In this case the ICJ becomes a tool of the UNGA placing a judicial imprimatur on poorly crafted and leading questions with pre-ordained outcomes. This creates a confict of interest. While there are a number of criteria by which the ICJ can turn down an advisory opinion it hardly ever does. The last time I recall it doing so was in the Carella case when it was the PCJ.
the point to be made is that when you get external bodies, such as the ASP, providing oversight we need just look at the ICJ for the historical precedent set by that organ. Although there are differences in the structure between the ICJ and the UN, from a macro perspective, the dangers are there as to the ASP meddling into the functioning of the Court.
This would not be the first time that provisions of the ICCSt. are inconsistent with other provisions of the Statute, the RPE, and the Regulations of the OTP, Court and Registry. Before delving into an oversight body more fudnamental issues need to be resolved, such as the true role of victim participaton under Article 68.
The IOM Operational Mandate’s proposed oversight mechanism is a constitutional restriction of prosecutorial independence.
Introduction
Article 112(4) of the Rome Statute grants the Assembly of States Parties (“Assembly”) the discretion 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.”1 The Assembly is exercising that discretion and is considering establishing an independent oversight mechanism (“oversight mechanism”).2
In attempting to enhance efficiency, just how expansive (or invasive) can the oversight mechanism be? In Parts I and II, I argue that the oversight mechanism’s expansiveness is limited by the structure of the Rome Statute and therefore cannot infringe other Rome Statute provisions, such as those requiring prosecutorial independence. However, I also argue that the Rome Statute’s structure does more than establish an upper limit on the mechanism’s expansiveness: It also establishes a lower limit. The oversight mechanism must encompass more than mere non-binding financial oversight to give effect to Article 118, which already provides for this type of oversight via an internal auditor.
In Part III, I reconcile these upper and lower limits of oversight’s expansiveness in the context of prosecutorial independence. I argue that an oversight mechanism may constitutionally restrict prosecutorial independence and suggest that oversight encompassing more than just financial issues is a constitutional restriction. In Part IV, I apply the above principles to the oversight mechanism proposed in the Report of the Bureau on the Independent Oversight Mechanism and conclude that the proposed mechanism is a constitutional restriction of prosecutorial independence. Lastly, Part V concludes and notes that further analysis is needed to determine if the proposed oversight mechanism is a constitutional restriction of other Rome Statute provisions, such as those requiring judicial independence.
I. Structural (upper) limits on expansiveness of the oversight mechanism
Article 112(4) grants the Assembly the discretion to establish an oversight mechanism to enhance the Court’s “efficiency and economy.”3 This phrase must be defined structurally, with competing Rome Statute provisions limiting the expansiveness of its definition. Thus, “efficiency and economy” cannot be interpreted so expansively as to allow the oversight mechanism to vitiate these competing provisions, such as the provisions establishing prosecutorial and judicial independence and protections for victims and confidential information.
The Rome Statute creates the Office of the Prosecutor (“OTP”) and Judicial Divisions as independent organs of the Court. Article 42(1) establishes prosecutorial independence: “The OTP shall act independently as an organ of the Court....”4 Similarly, the Rome Statute grants judges even greater independence. Article 40 establishes the independent Judicial Divisions: “The Judges shall be independent in the performance of their functions.”5 Judges are particularly independent because the Rome Statute places relatively fewer restrictions on their independence. For example, judges are exempted from Article 112(2)(b)’s “management oversight” (whereas the OTP is not),6 and Article 46 makes removing a judge from her position more difficult than removing the Prosecutor or Deputy Prosecutor from theirs.7
In addition to establishing these independent organs, the Rome Statute also provides protections for victims and confidential information. Article 36 requires that the Registry “setup a Victims and Witnesses Unit.... [which] shall provide in consultation with the OTP, protective measures and security arrangements…for witnesses, victims who appear before the Court, and others who are at risk on account of testimony given by such witnesses.” Similarly, Articles 54(1) and 57 obligate the Prosecutor and the Pre-Trial Chamber to protect victims.8
Other Rome Statute provisions protect the confidentiality of sensitive information.9 For example, Article 93(8) obligates the Court to “ensure the confidentiality of documents and information....”10 As another example, Article 54(3) grants the Prosecutor the power to keep certain information confidential.11
II. Structural (lower) limits on expansiveness of the oversight mechanism
Although the above Rome Statute provisions limit the expansiveness of the oversight mechanism, another Rome Statute provision establishes a threshold of expansiveness that the oversight mechanism must exceed. Article 118 of the Rome Statute, establishing an independent auditor,12 already provides oversight in the form of non-binding review of financial decisions. Thus, in order to give effect to the structure of the Rome Statute and for Article 112(4) to have meaning, the oversight mechanism must be capable of more expansive oversight than the non-binding review of financial decisions that already occurs via Article 118.
The scope of the independent auditor’s power is broad. Article 118 obligates the auditor to undertake an annual audit of “[t]he records, books and accounts of the Court, including its annual financial statements....”13 In performing this audit, the independent auditor “make[s] observations with respect to the efficiency of the financial procedures, the accounting system, the internal financial controls and, in general, the administration and management of the Court.”14 Additionally, the auditor also reviews the OTP in its “management and administration of the Office, including the staff, facilities and other resources thereof.”15
Although the scope of the independent auditor’s power is expansive, the auditor’s substantive power is limited, in an effort to preserve the Court’s independence. While the independent auditor must “identify[] which specific administrative functions could be carried out by [an organ of the Court] so as to maximize the cost-effectiveness of the Court,” it must do so “without prejudice, in particular, to the independent role of the Office of the Prosecutor.”16 Thus, to preserve this independence, the independent auditor is limited to “provid[ing] comments and recommendations to the…[Prosecutor] in areas falling under [his] authority…by virtue of Article 42, paragraph 2, of the Rome Statute....”17
The independent auditor is a form of oversight.18 Thus, to give effect to the structure of the Rome Statute, Article 112’s oversight mechanism must have a different scope and/or substantive power than what is already provided by Article 118’s non-binding review of financial decisions.
III. Reconciling the upper and lower limits
As implicitly argued above, the oversight mechanism cannot infringe other provisions in the Rome Statute, but it can restrict those provisions. The Rome Statute, such as in Article 118, demonstrates that prosecutorial independence can be restricted.19 But at what point does a constitutional restriction cross the line and become an unconstitutional infringement?
Striking the proper balance for the oversight mechanism’s expansiveness depends on the specific context. In the context of prosecutorial independence, Article 118 suggests that the oversight mechanism should have more expansive review than just non-binding review of the OTP’s management functions. Yet, at the same time, the oversight mechanism can’t be so expansive as to infringe prosecutorial independence. Prosecutorial independence is essential to justice and the Court’s impartiality and legitimacy.20 Thus, an oversight mechanism that destroys prosecutorial independence by exerting too much political influence or introducing too much bureaucracy—and thus transforming the fight against impunity into the fight against bureaucracy—would infringe this prosecutorial independence requirement.
To the extent that determining the extent of oversight constitutionally allowed is ambiguous, the travaux préparatoires offers some guidance, suggesting that an oversight mechanism employing a more expansive scope might be a constitutional restriction of prosecutorial independence. While states’ representatives recognized prosecutorial and judicial independence as essential to “safeguard[ing] against the danger that an independent court could become a forum for politically motivated prosecutions,”21 they also assumed that the oversight mechanism would restrict prosecutorial independence. This assumption is evidenced in a statement by India’s representative regarding the extent of the oversight mechanism’s scope, stating that “[a] decision was needed as to whether any oversight mechanism should deal with all the operations of the court or only with non-judicial administration.”22
Thus, with this history as a guide, an oversight mechanism employing a broader scope than the independent audit (e.g., covering all prosecutorial decisions—not just financial) but lacking binding substantive power might not infringe the prosecutorial independence requirement. However, even though this oversight mechanism may be a constitutional restriction of prosecutorial independence, the mechanism still must share the same obligations as the Prosecutor and other organs in protecting the safety of victims and the confidentiality of information. If the oversight mechanism was not subject to these obligations, the Rome Statute’s structural goal of protecting sensitive information would be vitiated, thus potentially compromising the safety of witnesses and victims and the security of nations.
IV. Constitutionality of the IOM Operational Mandate’s proposed oversight mechanism
The Report of the Bureau on the Independent Oversight Mechanism “recommended that the Assembly adopt the ‘IOM Operational Mandate....’ ”23 The Mandate’s proposed oversight mechanism (“proposed oversight mechanism”) is similar to the example I posited in the prior section: It has a relatively expansive scope, limited substantive power and shares the same obligations in protecting sensitive information. Thus, I argue that the proposed oversight mechanism likely is a constitutional restriction of prosecutorial independence.
The proposed oversight mechanism’s scope is expansive: It has the authority to investigate all “misconduct,” which includes “acts by a judge, the Prosecutor, a Deputy Prosecutor[ and others].”24 “[M]isconduct” is broadly defined as “ ‘unsatisfactory conduct,’ which includes any act or omission…in violation of [the person’s] obligations to the Court....”25 Additionally, the proposed oversight mechanism can initiate an investigation proprio motu when it has a “reasonable basis” to do so.26 During an investigation, the proposed oversight mechanism has access to all relevant information, including confidential information.27
Although the proposed oversight mechanism has a broad scope, its substantive power is significantly limited by two provisions. First, the proposed oversight mechanism cannot compel any person or organ of the Court to undertake an action. Rather, its substantive power is limited to submitting “recommendations for consideration of possible disciplinary or jurisdictional action,” to the relevant organs.28 Additionally, the proposed oversight mechanism’s power is further limited by its obligation to respect the independence of other organs. The proposed mechanism must:
Furthermore, the proposed oversight mechanism does not infringe the Rome Statute provisions protecting the safety of victims and confidentiality of information. The proposed mechanism shares the same confidentiality obligations as all other organs. Specifically, it is “subject to [the] confidentiality considerations envisaged by the Rome Statute in the context of judicial proceedings, a pre-existing obligation of confidentiality to the originator of the information or document, the safety and security of witnesses, victims and third parties, and the protection of national security information of State Parties.”30
V. Conclusion
I’ve argued that an oversight mechanism must respect the constitutional structure of the Rome Statute. The bulk of this Comment addressed the issue of whether the proposed oversight mechanism respected one specific structural element of the Rome Statute, prosecutorial independence, and concluded in the affirmative.
However, although the proposed oversight mechanism is a constitutional restriction of prosecutorial independence, it still may unconstitutionally infringe other Rome Statute provisions, such as the requirement of judicial independence. In Part I, I argued that the Rome Statute grants judges even greater independence than it grants prosecutors. Yet the proposed oversight mechanism operates indiscriminately, subjecting all organs to the same extent of oversight.31 Thus, determining whether the proposed oversight mechanism unconstitutionally infringes the even more independent Judicial Divisions requires further analysis.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]. ↩
Establishment of an independent oversight mechanism, Resolution ICC-ASP/8/Res.1 (November 26, 2009); see also Report of the Bureau on the Independent Oversight Mechanism, ¶ 2, Doc. ICC-ASP/9/31 (Nov. 19, 2010) [hereinafter cited as IOM Report], available online. ↩
Rome Statute, supra note 1, at art. 112(4). ↩
Id. at art. 42(1). ↩
Id. at art. 40. ↩
Id. at art. 112(b) (stating that “[t]he Assembly shall…[p]rovide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court”). ↩
Id. at art. 46 (stating that a judge may be removed from office only “by a two-thirds majority [vote] of the States Parties,” whereas the Prosecutor or Deputy Prosecutor may be removed only “by an absolute majority [vote] of the States Parties”).
Another example is that the Rome Statute grants the OTP less independence from the Assembly than it grants the Judicial Divisions. Article 40 states that “judges shall be independent,” as in independent from any external source. Contrastingly, Article 42 only grants the OTP “independen[ce] as a separate organ,” and the Assembly is arguably not an organ of the court. IOM Report, supra note 2, at ¶ 51. ↩
Rome Statute, supra note 1, at art. 57 (stating that “the Pre-Trial Chamber may…[w]here necessary, provide for the protection and privacy of victims and witnesses”); see id. at art. 54 (stating that “[t]he prosecutor shall…[t]ake appropriate measures to ensure the effective investigation and prosecution…and, in doing so, respect the interests and personal circumstances of victims and witnesses”). ↩
IOM Report, supra note 2, at annex ¶ 16; see generally Rome Statute, supra note 1, at arts. 54, 57, 64, 68, 72, 93. ↩
Rome Statute, supra note 1, at art. 93(8). ↩
Id. at art. 54(3). Specifically, it grants the Prosecutor the right to: “Agree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents; and [the power to] [t]ake necessary measures, or request that necessary measures be taken, to ensure the confidentiality of information…” ↩
Id. at art. 118. ↩
Id. ↩
Report of the Preparatory Commission for the International Criminal Court, ¶¶ 12.1-12.9, UN Doc. PCNICC/2001/1/Add.2 (Jan. 8, 2002); see also Report of the Preparatory Commission for the International Criminal Court, ¶ 107, UN Doc. PCNICC/2002/2/Add.1 (July 23, 2002) [hereinafter cited as July 2002 Report] (stating that the “Office [of Internal Audit] would conduct independent audits of the financial transactions and the administrative systems underlying such transactions”). ↩
See note 3, supra, and accompanying main text; see also Rome Statute, supra note 1, at art. 42(2). ↩
July 2002 Report, supra note 14, at ¶ 38, ↩
Id. at ¶ 107. ↩
E.g., Lucia DiCicco, “Recommendations for the Establishment of an Independent Oversight Mechanism for the ICC,” AMICC, July 28, 2009, available online. ↩
For other examples of how the Rome Statute restricts prosecutorial independence, see notes 6, 7, 8, supra, and accompanying main text. ↩
E.g., Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 Am. J. Int’l L. 510, 512-15 (2003) (stating that prosecutorial independence “transforms the Court from a political body festooned with the trappings of law to a legal institution with strong political undertones”); see also Matthew R. Brubacher, Prosecutorial Discretion within the International Criminal Court, 2 J. Int’l Crim. Just. 71, 76 (2004). ↩
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, June 15, 1998–July 17, 1998, 119, UN Doc. A/CONF.183/13 (Vol. II) (2002); see also id. at 246. ↩
Id. at 224 (emphasis added). ↩
IOM Report, supra note 2, at ¶ 71. ↩
Id. at annex ¶ 2 (stating that “[t]he 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[,]…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”). ↩
Id. at 18 n.3 (emphasis added). However, excluded from this definition are “contractual disputes [and] human resource management issues, [such as] work performance, conditions of employment or personnel-related grievances.” Id. at annex ¶ 5. ↩
Id. at annex ¶¶ 12-13 (stating that the proposed oversight mechanisms “has the authority to initiate [investigations]…without any hindrance or need for prior clearance”). ↩
Id. at annex ¶ 15. Specifically, the proposed oversight mechanism has “access to all…Court records, files, documents, books or other materials, assets and premises…as [the oversight mechanism’s staff] consider[s] necessary to fulfill their responsibilities.” Id. (emphasis added). ↩
Id. at annex ¶ 4 (emphasis added). ↩
Id. at annex ¶ 19. ↩
Id. at annex ¶ 16. ↩
See note 22, supra, and accompanying main text. ↩
The IOM may not be needed for financial supervision or administrative management of the ICC, but it would be significantly beneficial to the Court for oversight of misconduct and making recommendations to the ASP.
Introduction
The general concept of judicial or prosecutorial independence is often cited as a justification to minimize the need for oversight of the International Criminal Court (“ICC” or “Court”).1 However, keeping an international court accountable is necessary in order to maximize the performance, productivity, and efficiency of the court. To achieve this objective, effective oversight of an international body such as the ICC requires the performance of four primary functions: 1) financial and budgetary supervision, 2) administrative management, 3) oversight of misconduct of elected officials, staff members, and contractors, and 4) recommendations to the Assembly of States Parties (“ASP”) for improvements to the Court. This paper will lay out the need for each of these functions for the ICC and then discuss whether and to what extent the Independent Oversight Mechanism (“IOM”) established by the ASP is needed to facilitate and perform these functions.
I. Financial Supervision
Past international tribunals are probative in distilling the need for financial supervision. The International Criminal Tribunal for the former Yugoslavia (“ICTY”) was widely criticized for spending vast sums of money to conduct very few trials2 while the International Criminal Tribunal for Rwanda (“ICTR”) suffered from an inept fiscal infrastructure.3 For example, the ICTR “had no accounting system and could not produce allotment reports, so that neither the Registry nor United Nations Headquarters had budget expenditure information.”4 The need for financial oversight is heightened for the ICC because it is a permanent tribunal, which brings with it permanent costs and a constant need to justify its existence.5 This is because “[n]o international—or federal, for that matter—organization has decreased its size or mandate without being forced to sunset or make drastic cuts. Some official is always finding more to do, and this will be the particular case for an organization that sees itself as the arbiter of international justice.”6 A supervisory body could help prevent serious financial missteps from occurring.
Under Article 112(4) of the Rome Statute, the ASP “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.”7 While it is true that a subsidiary body like the IOM could fulfill the need for fiscal oversight, the ICC has already established such supervisory bodies. The Office of Internal Audit (“OIA”), which is part of the Registry of the ICC, is charged with providing “the heads of organs of the Court with objective and timely information about the Court’s internal controls, management systems and practices, composing a framework of risk management of the Court, and undertaking an in-depth performance audit.”8 On top of the financial accountability provided by the OIA, the ASP has also brought in the National Audit Office (“NAO”) of the United Kingdom to serve as an external auditor of the Court.9 Moreover, for financial or budgetary issues, the IOM must answer to both the ASP’s Committee on Budget and Finance and the Oversight Committee on Permanent Premises.10 Thus, unless the OIA is subsumed by the IOM, the financial monitoring functions of both the internal OIA and the external NAO, along with the two existing ASP committees, preclude the need for the IOM to perform the function of fiscal oversight over the ICC.
II. Administrative Management
Past international tribunals are also helpful in establishing the need for administrative management. In the ICTR, the Office of the Prosecutor in Kigali faced major operational deficiencies. For example, “[f]unctions were hampered by lack of experienced staff as well as lack of vehicles, computers and other office equipment and supplies. Lawyer posts were vacant and, of the almost 80 investigator posts, only 30 had been filled.”11 Moreover, “there were no formal developed qualification criteria for recruitment. In addition, key positions in personnel management had no required qualifications.”12
The ICTY had similar problems, including “inefficient and non-transparent arrangements for the construction, rental and maintenance of the office building and detention facilities. Also, the ICTY faced delays in delegation of procurement authority and…unauthorized recruitment actions.”13 Although the ICTY may have faced less extreme administrative difficulties than the ICTR, it was the judges themselves who were forced to “spend considerable time debating proposals to improve efficiency, and…more time still responding to the suggestions and criticisms of others.”14 An external oversight mechanism like the IOM that is dedicated to ensuring the performance, productivity, and efficiency of the ICC could ensure that similar administrative lapses do not occur.
However, although the IOM is charged with the task of administrative management of the Court, its operational mandate is limited: “The Independent Oversight Mechanism will not investigate contractual disputes or human resource management issues, including work performance, conditions of employment or personnel-related grievances.”15 In contrast, the Registry of the ICC has an expansive mandate that includes such non-judicial aspects of the administration and servicing of the Court.16 This includes communicating with the staff in “identifying, examining and resolving issues relating to staff welfare, including conditions of work, general conditions of life and other personnel policies.”17 The Registry is also tasked with evaluating the “efficiency, competence and integrity [of the staff] in the discharge of their functions.”18
As a result of these internal mechanisms, the Registry has enhanced the ICC’s recruitment process for staff on established posts while reducing the number of temporary posts.19 Moreover, from January 1, 2009 to April 30, 2009, the Registry has helped the ICC hold 65 hearings in 217 hours, appoint legal representatives for 52 victims, register 1,927 documents, and delivery 269 decisions, orders, or judgments.20 Thus, not only does the Registry already have broader authority and greater responsibilities than the IOM over the administrative management of the ICC, but it has also been performing that function effectively. An oversight body like the IOM that also supervises the administration of the ICC alongside the Registry would not fill any need or provide any additional benefit to the Court.
III. Oversight of Misconduct
The ICC faces a greater challenge than past international tribunals. Both the ICTY and ICTR not only focused on one conflict, but “the fundamental decision[s] as to where to investigate [were] made at the outset.”21 As a result, there was little need for oversight of larger issues such as legal policy or prosecutorial misconduct because the main problems that arose were often limited to administration and finances.22 In contrast, the Office of the Prosecutor (“OTP”) has a much broader reach in terms of jurisdiction and much more discretion in making substantive legal decisions such as where to launch new investigations and whom to prosecute.23
Moreover, the ICC can be distinguished from the Nuremberg trials. Whereas Nuremberg involved the collective decision of all of the Allied nations to prosecute defendants who had committed unanimously heinous atrocities in the past, the ICC is unique in that it involves the decisions of a few people to investigate or prosecute defendants in new or ongoing situations where culpability is often disputed.24 Such fundamental decision-making authority demands strict accountability to an oversight body in case of misconduct.
Without the appropriate checks, an international body like the ICC and its various organs is susceptible to misconduct in various ways. For example, among all of the ICC’s active cases, the ICC has “targeted crimes against humanity committed [only] in the African states of Sudan, Democratic Republic of Congo, Central African Republic, Uganda and Kenya.”25 In response, the African Union has recently accused the ICC of bias against African countries.26 Another potential danger is that the Prosecutor can initiate an investigation proprio motu so long as two of the three judges on the Pre-Trial chamber agree.27 The fact that major decisions of the ICC are placed in the hands of so few people raises the possibility of improper or even politically motivated investigations, prosecutions, and cases.
In addition, although it is claimed that the Rome Statute has robust mechanisms in place to ensure that the ICC will defer to national criminal jurisdictions and only be used as a last resort, “the strength of those mechanisms is questionable when the ICC is the body that ultimately decides if a nation is willing and able to prosecute the accused.”28 More specifically, under Article 17 of the Rome Statute, a case is inadmissible if it has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute, unless the Court determines that the decision resulted from the unwillingness or inability of the State genuinely to prosecute.29 In other words, according to this statute, even if a State Party decides not to prosecute an accused in good faith, it is possible for the Court to second-guess the State and determine that the State is simply unwilling to do so, and then prosecute anyway against the State’s objection.30 Consequently, although the Rome Statute states that the ICC “shall be complementary to national criminal jurisdiction,”31 the ICC has the authority to “substitute its judgment anytime it disagrees with the outcome of the State proceedings” in a way that does not defer to, but rather preempts national criminal jurisdiction.32
There are various sets of rules that govern misconduct of officials within the ICC, including Articles 46 and 47 of the Rome Statute, Rules 23-32 of the Rules of Procedure and Evidence, and Regulations 119-125 of the Regulations of the Court.33 Serious misconduct and serious breaches of duty result in removal from office, while misconduct of a less serious nature results in disciplinary measures.34 All complaints of such conduct are transmitted to the Presidency of the ICC, which may also initiate proceedings on its own motion.35
However, while a prosecutor or a judge who is accused of misconduct may be removed from office by the ASP, such a decision requires either an “absolute majority,” or even more difficult, “a two-thirds majority of the States Parties upon a recommendation adopted by a two-thirds majority of the other judges.”36 Even less serious violations of the Prosecutor that merit discipline instead of removal require an absolute majority of the States Parties as well, and disciplinary measures are limited to either a simple reprimand or a short “pecuniary sanction that may not exceed six months of the salary paid by the Court.”37 Thus, although the threat of removal or discipline may deter the most serious offences, that threat is significantly minimized for less serious misconduct. Yet, even if the remote possibility of removal or discipline provided an effective check to the ICC, there is a problem. While the Rome Statute demands that the Prosecutor “act independently,”38 the ASP ultimately has the power to elect and fire the Prosecutor; this gives the Prosecutor at least one incentive “to act in favor of the interests of the majority of the States Parties” instead of in the interests of justice.39
In light of the need for oversight of misconduct and the lack of vigorous mechanisms within the ICC or ASP, a specialized oversight mechanism like the IOM that is independent and external to the Court could provide a powerful check against improper investigations, prosecutions, or decisions by the Court.40 Such a subsidiary organ could monitor the ICC for all degrees of misconduct and keep the ICC’s actions accountable in a more effective way than existing mechanisms while minimizing the appearance of impropriety.41
IV. Recommendations to the ASP
The need for and effectiveness of an oversight body that makes informed recommendations is evidenced by the ICTY and ICTR. During the early years of the ICTY, a range of issues arose, including “the policy on selectivity of charges, the threshold level of seniority of indictees, the policy of plea-bargaining and sentencing policy that [had] not been seriously addressed by the Security Council or any other independent oversight body.”42 However, after a comprehensive evaluation by the Office of Internal Oversight Services (“OIOS”) of the United Nations revealed several problems in all of the ICTY’s organs, OIOS made a number of recommendations. As a result, “the ICTY was able to achieve savings as well as to reduce the expenditures by strengthening existing controls and procedures. In addition, a number of initiatives had been undertaken to improve the ICTY’s performance through the use of information technology and by making changes in working methods.”43 OIOS also made recommendations to the ICTR with positive results, such as “noticeable improvements in financial management as well as in filling vacant positions” and increased productivity.44
An oversight mechanism like the IOM could play a similar role for the ICC. While the Pre-Trial Chamber and the Preparatory Commission can make recommendations to the Court in certain situations, the ICC is likely to be constantly confronted with new and underdeveloped issues that require research, expertise, and proposals to help enhance the efficacy of the ICC.45 A permanent subsidiary body like the IOM that is committed to such a task can present relevant proposals for the ASP to consider and approve that “set out a range of options, explaining the legal, policy, and financial implications of each. The ASP would then be better placed to take appropriate decisions to steer the ICC, particularly through its formative early years”46 Such a oversight body that makes informed recommendations to the ASP is necessary for proper oversight of the ICC.
V. Conclusion
In this paper, I have presented four primary functions that are necessary for effective oversight of an international body like the ICC. While an oversight mechanism like the IOM may not be needed for financial supervision or administrative management of the ICC, it would be significantly beneficial to the ICC for oversight of misconduct and making recommendations to the ASP to improve the Court.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Dominic Raab, Evaluating the ICTY and its Completion Strategy: Efforts to Achieve Accountability for War Crimes and their Tribunals, 3 J. Int’l Crim. Just. 82, 98 (Mar. 2005) (Oxford Journals paywall, SSRN paywall). ↩
Nancy Amoury Combs, Copping a Plea to Genocide: The Plea Bargaining of International Crimes, 151 U. Pa. L. Rev. 1, 142 (Nov. 2002), available online. ↩
Id. ↩
Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, UN GAOR, 51st Sess., Annex, Agenda Items 139 and 141, at 2, UN Doc. A/51/789 (1997), [hereinafter cited as Report of the Secretary-General], available online. ↩
Patricia McNerney, The International Criminal Court: Issues for Consideration By the United States Senate, 64 Law and Contemp. Probs. 181, 189 (Winter 2001), (PDF Version). ↩
Id. ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], art. 112(4) ↩
Agata Porter, An Independent Oversight Mechanism for the International Criminal Court, AMICC at 6, (Feb. 6, 2008), available online. ↩
Id. ↩
Agata Porter, Recommendations For the Establishment of an Independent Oversight Mechanism for the ICC, AMICC at 1-2, (July 28, 2009), available online. ↩
Report of the Secretary-General, supra note 4, at 2. ↩
Porter, supra note 8. ↩
Id. ↩
Combs, supra note 2, at 142. ↩
Operational Mandate of the Independent Oversight Mechanism, Resolution ICC-ASP/9/Res.5, Annex, at 36, Doc. ICC-ASP/9/20 (Dec. 10, 2010), [hereinafter cited as Operational Mandate], available online. ↩
Rome Statute, supra note 7, at art. 43(1). ↩
Staff Regulations of the International Criminal Court, Resolution ICC-ASP Res.2, at 11, Doc. ICC-ASP/2/10 (Sept. 12 2003), available online. ↩
Id. at 8. ↩
Coalition for the Int’l Crim. Court, Facts and Figures from Registry as at 30 April 2009 at 1, (June 4, 2009), available online. ↩
Id. at 2, 4. ↩
Raab, supra note 1, at 100. ↩
Id. ↩
Id. See Rome Statute, supra note 7, at art. 15. ↩
Tonya J. Boller, The International Criminal Court: Better Than Nuremberg?, 14 Ind. Int’l & Comp. L. Rev. 279, 313 (2003), (Lexis/Nexis paywall). ↩
Reuters, African Union Accuses ICC Prosecutor of Bias, Jan. 30, 2011, available online. ↩
Id. ↩
Boller, supra note 24, at 297. See Rome Statute, supra note 7, at arts. 15, 17. ↩
Id. at 301. ↩
Rome Statute, supra note 7, at art. 17. Italics added. ↩
Jimmy Gurule, United States Opposition to the 1998 Rome Statute Establishing an International Criminal Court: Is the Court’s Jurisdiction Truly Complementary to National Criminal Jurisdictions?, 35 Cornell Int’l L.J. 1, 27 (2002), (Lexis/Nexis paywall). ↩
Rome Statute, supra note 7, at art. 1. ↩
Gurule, supra note 30, at 27-28. ↩
Porter, supra note 8, at 7. ↩
Id. ↩
Rules of Procedure and Evidence Adopted by the Assembly of States Parties, ICC-ASP/1/3, Rule 30, 32 (Sept. 3-10, 2002), available online [hereinafter cited as Rules of Procedure]. ↩
Rome Statute, supra note 7, at art. 46. ↩
Rules of Procedure, supra note 35, at Rule 30, 32. ↩
Rome Statute, supra note 6, at art. 42. ↩
Boller, supra note 24, at 297. ↩
See Operational Mandate, supra note 15, at 36 (“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…, 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…”). ↩
See id. at 36 n.2 (“Misconduct, also described in the Staff Rules as “unsatisfactory conduct”, which 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.”). ↩
Raab, supra note 1, at 99. ↩
Porter, supra note 8, at 10-11. ↩
Id. at 12. ↩
See, e.g., Rome Statute, supra note 7, at arts. 56(2), 59(5), 112(2). ↩
Raab, supra note 1, at 101. ↩
The Independent Oversight Mechanism will consume the resources of the International Criminal Court and will adversely affect the court’s ability to perform its functions effectively.
Introduction
The Independent Oversight Mechanism as envisaged by the Rome Statute could potentially serve an important function in enhancing the International Criminal Court’s efficiency and economy. However, the mechanism proposed by the Assembly of States Parties seems to run contrary to the model of efficiency cited in the Rome Statute. Article 112(4) of the Rome 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.”1 “The Operational Mandate of the Independent Oversight Mechanism” as proposed by the Assembly of State Parties (ASP) in Resolution ICC-ASP/9/Res.5 would consume the court’s resources through redundancy and bureaucratic problems.2 Its proposed processes for investigation and evaluation would inevitably lead to problems of wasteful spending.
As a result of the global recession, which limited the budgets of many nations and international organizations, state parties called on the International Criminal Court to use its resources in a more efficient and effective manner in order to maximize the financial contributions made by each state party.3 This comment offers an overview of some of the inefficient processes by which the Independent Oversight Mechanism (IOM) aims to accomplish its oversight objectives. In spite of the promise it holds, the oversight mechanism may only yield marginal benefits as compared to the potential high costs to the International Criminal Court. By analyzing how the IOM’s processes may potentially result in excessive resource consumption for the International Criminal Court (ICC), the author of the comment hopes to raise the issue of system inefficiency, its repercussions, and how it will affect the performance of the court’s functions.
I. System Inefficiency and the Independent Oversight Mechanism
Although the objective of the IOM is to enhance the efficiency of the ICC, there are core inefficiencies stemming from the IOM’s proposed processes for investigation. System inefficiency can be defined in terms of wasted resources and poor performance, which inevitably result in growing costs to the court.4 Several apparent symptoms of inefficiency include unproductive use of personnel, unnecessary delays within the process, unnecessary steps in the process, and counter-productive or duplicative activities.5 The ICC should implement mechanisms that maximize the utility of its resources and truly enhance the court’s efficiency and economy. The IOM, however, is not such a mechanism.
A. Insistence by the IOM to investigate an organ even after a third party has determined that the investigation would undermine that organ’s judicial or prosecutorial independence may lead to excessive resource consumption
When a head of an organ objects to an investigation by the IOM and the IOM still considers a need for the investigation, the determination of whether the IOM will proceed with an investigation of an organ will be determined by a third party with judicial or prosecutorial experience.6 The ability of the IOM to second guess the determinations made by a third party in concluding that an IOM investigation would undermine judicial or prosecutorial independence of an organ produces great inefficiencies, including unnecessary delays, unnecessary steps, and unproductive use of personnel.7 The scenario below illustrates the inefficient process of when a third party deems that an IOM investigation would undermine judicial or prosecutorial independence of an organ but the IOM persists in conducting its own investigation.
1. Proprio Motu Investigation by the IOM
The Resolution that was adopted during the 9th session of the Assembly of State Parties provides a detailed mandate for the operation of the IOM and its interactions with other organs of the ICC.8 Accordingly, when there is an objection by an organ head concerning an investigation that the IOM initiated because it would undermine judicial or prosecutorial independence of that organ, the IOM will take those concerns into consideration.9 Notwithstanding these concerns, if the IOM deems that there is a need for an IOM investigation, the matter will proceed and be determined by a third party appointed by the Bureau.10 In the event that the third party determines that the IOM investigation would undermine judicial or prosecutorial independence of the organ, the organ head will conduct its own investigation and submit a report to the IOM.11 If the IOM is not satisfied with the investigation or the outcome, it can seek clarifications from the organ head.12
If the matter is still not resolved to the “satisfaction” of the IOM, the IOM can apply its oversight powers to investigate the organ head for not addressing the specific concerns of the IOM and also bring the issue to the attention of the assembly.13 If after investigating the organ head, the IOM makes the determination that the investigation of the staff or contractors was not conducted properly, the matter will be referred back to the third party who will then determine whether the IOM should proceed with the initial investigation.14
2. Process Method Flaws
The above process is flawed in several important respects. After a neutral third party has made a determination that an IOM investigation would be inappropriate, the IOM can refer the matter back to the third party. The IOM can require the third party to make a second determination as to whether the IOM should investigate if the IOM is dissatisfied with the organ head’s investigation. The IOM’s operational mandate does not provide any guidance to the organ head concerning what investigation the IOM would find satisfactory. Consequently, the organ head may feel pressured to expend considerable amounts of time and personnel in conducting its own investigation in order to meet the IOM’s arbitrary notion of “satisfaction.” If the IOM deems that the organ head did not properly conduct the investigation, the IOM may investigate the organ head and bring the issue to the attention of the Assembly.15 Rather than be subject to the scrutiny of the IOM and the Assembly, the organ head will likely ensure that more than a reasonable amount of resources be expended to investigate the matter. Although it is possible that a proper investigation of the official, staff, or contractor can be conducted with fewer resources, the organ head may err on the side of caution and expend more resources than necessary to conduct the investigation.
The optimal level of efficiency for the organ would be to expend only the necessary amount of resources for completing a given task. However, the organ would be conducting the investigation at a suboptimal level of efficiency. The organ would likely spend more time, personnel, and resources in completing the same investigation of its official, staff or contractor when the IOM is in the picture. Thus, the court’s system inefficiencies would increase due to the operational mandate of the IOM.
3. Second Referral to the Third Party
Additionally, the second referral to the third party from the IOM produces inefficiencies in the system because it presumes that the third party would change its stance as to whether the investigation undermines the organ’s judicial or prosecutorial independence. The question of whether an investigation by the IOM would encroach on an organ’s judicial or prosecutorial independence is distinct from whether the third party deems that the IOM should investigate because the IOM found that the organ head failed to properly investigate.16
As an initial matter, the third party determined that an investigation by the IOM would undermine the organ’s judicial or prosecutorial independence, and for this reason the third party concluded that the IOM should not investigate the matter. The third party had already made a determination that an investigation by the IOM would be inappropriate. Already having determined this underlying issue, it would seem unlikely that the third party would change its posture because the IOM deemed that the organ did not properly investigate the issue. After all, the central issue is whether the IOM would infringe upon the organ’s judicial or prosecutorial independence. Whether the organ properly investigated the matter is irrelevant to the underlying issue. Consequently, the unnecessary steps that were taken in order to reach the same conclusion by the third party would substantially consume the time, energy, and effort of the organ, the third party, and the IOM. The money and resources expended by all three entities would certainly be an inefficient use of the ICC’s resources.
4. Appeal Process
Another important consideration is that the conflict between the IOM and the organ may not end with the IOM’s unilateral decision; rather the organ may desire to appeal the IOM’s finding. The ASP’s resolution has not established the procedural mechanism for appeal by an organ. Whether the organ is even entitled to appeal is a matter that has not been addressed in the ASP resolutions. If an appeal process were instituted, one can only imagine the amount of time, energy, and personnel required on the part of the organ to successfully prevent an IOM investigation. Rather than devoting the organ’s resources to accomplishing its core functions within the ICC, the organ will instead devote the same resources to appeal the IOM matter. Such an outcome is clearly contrary to the IOM’s proposed purpose of enhancing the efficiency and economy of the ICC.
B. The IOM’s ability to demand direct and prompt access to elected officials will contribute to unproductive use of personnel and unnecessary delays
Resolution ICC-ASP/9/Res.5 Paragraph 15 provides, “The Staff of the Independent Oversight Mechanism shall have direct and prompt access to all elected officials, staff and contractors, and shall receive their full cooperation.”17 The ability of the IOM to demand prompt access and cooperation of all elected officials, staff, and contractors not only creates an unbalanced power relationship where the elected officials must be made available to the whim of the IOM, but also produces a situation where the elected official’s time could be consumed by the investigative activities of the IOM. By making the elected official readily available to the IOM, the official’s work may be adversely affected. The official’s productivity would begin to decrease with constant distractions via the IOM making it difficult for the official to focus his time and energy on his core tasks. If the IOM decides to conduct an investigation of several organs on either distinctive or related issues, the aggregate effect on the court may be substantial with productivity levels decreasing markedly.
Consider the following possibility—the Prosecutor of the International Criminal Court and his staff are dutifully investigating a case against an alleged war criminal and timely issuance of a warrant is of the essence because the alleged criminal might flee. Concurrently, the IOM initiates an investigation of the Prosecutor and key members of his staff for alleged misconduct and demands “direct and prompt access” to them.18 Given the exigency of issuing the warrant, the Prosecutor and his staff may refuse to become immediately available to answer the inquiries of the IOM. If the IOM deems that their failure to cooperate was not due to a reasonable excuse, they will be reported upon and may face disciplinary action.19
In the above example, the “failure to cooperate” by the Prosecutor and his staff may be deemed reasonable because of the exigent circumstances; however, the IOM has ultimate discretion to determine what constitutes a reasonable excuse. This unfettered discretion by the IOM as to what constitutes a reasonable excuse may inadvertently lead to unproductive results because an elected official may have to make himself immediately accessible to the IOM in order to avoid disciplinary action at the expense of neglecting his core duties. As a consequence, there may be significant delays in issuing warrants, investigating criminals, and analyzing evidence by elected officials and their staff. The time spent on any given task will likely take longer because of the constant interruptions by the IOM. The productivity of the elected officials and staff members will decrease as their inability to focus on their primary tasks increases. In the aggregate, these consequences can have a potentially harmful effect on the effectiveness of the International Criminal Court.
II. Accountability of the oversight mechanism
Resolution ICC-ASP/8/Res.1 Paragraph 15 provides, “The oversight mechanism will submit quarterly activity reports directly to the Bureau of the Assembly of states and will also submit on an annual basis a consolidated report of its activities to the Assembly via the Bureau.”20 One important aspect of the accountability method is that the activity reports will not be submitted to the Bureau of the Assembly of States until the quarter’s end. The reporting requirements may be inadequate to hold the mechanism accountable to the ASP and to also identify process inefficiencies. A more effective approach would be for the independent oversight mechanism to report directly to a standing ASP committee.21 The reporting requirement should ensure that the mechanism does not waste its time and limited resources on frivolous claims.22 However, it may be difficult for the ASP to identify whether the IOM is investing its resources on a frivolous matter because review is not conducted when the IOM begins its investigative activity, but rather at quarter’s end. It will not be until the ASP actually reviews the IOM’s activities that any inefficiency may become evident. Thus, this can contribute to additional system inefficiencies because the IOM may initiate an investigation into a matter and expend considerable time and resources not knowing that the matter is frivolous or that another prosecutorial entity has already initiated an investigation into the matter.
III. Conclusion
In this comment, I identified various critical inefficiencies in the IOM. The IOM would not only duplicate many oversight activities performed by other organs, but it would also consume considerable resources.23 Because the ICC already has institutional checks and balances designed to address the problem of abuse and misconduct, the IOM will not add value to the criminal court.24 Thus, I recommend that the IOM be eliminated because its benefits do not outweigh its costs to the court. By causing unnecessary delays, unproductive use of personnel, and counter-productive activities, the IOM is an inefficient mechanism. Consequently, the IOM will waste the court’s resources and affect the ICC’s ability to perform its core functions effectively.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]. ↩
Independent Oversight Mechanism, Resolution ICC-ASP/9/Res.5 (December 10, 2010). ↩
International Criminal Court Assembly of States Parties take place in New York., Foreign and Commonwealth Office, Dec. 7, 2010, available online ↩
E.g., Yvon Dandurand, Addressing Inefficiencies in the Criminal Justice Process, International Centre for Criminal Law Reform and Criminal Justice Policy, June 2009, available online. ↩
Id. ↩
Resolution ICC-ASP/9/Res.5, supra note 2, at para. 21-22. ↩
Id., at para. 22 (“Should the Independent Oversight Mechanism, notwithstanding such concerns, still consider that there is a need for an Independent Oversight Mechanism investigation, the matter of whether an Independent Oversight Mechanism investigation would proceed shall be determined by a third party with judicial or prosecutorial experience appointed by the Bureau”). ↩
Id. ↩
Id., at para. 21. ↩
Id., at para. 22. ↩
Id., at para. 24. ↩
Id. ↩
Id. ↩
Id., at para. 25. ↩
Id., at para. 24. ↩
Id., at para. 24 (“Should the outcome of an Independent Oversight Mechanism investigation of the organ head be a finding that the investigation of the staff or contractors under their respective authority was not conducted properly, the matter shall be referred back to the third party, who shall determine whether the Independent Oversight Mechanism should proceed with the initial investigation.”). ↩
Id., at para. 15. ↩
Id. See also Rome Statute, supra note 1, art. 70 (“The court shall have jurisdiction over the following offences against its administration of justice when committed intentionally: (a) Giving false testimony when under an obligation pursuant to article 69, paragraph 1, to tell the truth; (b) Presenting evidence that the party knows if false or forged; (c) Corruptly influencing a witness, obstructing or interfering with the attendance or testimony of a witness, retaliating against a witness for giving testimony or destroying, tampering with or interfering with the collection of evidence....”). ↩
Id., at para. 15. ↩
Establishment of an independent oversight mechanism, Resolution ICC-ASP/8/Res.1 (November 26, 2009). ↩
Lucia DiCicco, “Recommendations for the Establishment of an Independent Oversight Mechanism for the ICC,” AMICC, July 28, 2009, available online. ↩
Id. ↩
See Steven C. Roach, Politicizing the International Criminal Court, 52-53 (Rowman & Littlefield Publishing Group, Inc., 2006). ↩
Id. ↩
The creation of the Independent Oversight Mechanism (IOM) presents a new set of challenges and opportunities for the International Criminal Court (ICC). In order to capitalize on the benefits that the IOM may be able to provide, the Assembly of States Parties (ASP) must ensure that it is built upon a solid foundation: a properly tailored mandate. The Rome Statute provision that allowed the ASP to create the IOM, Article 112(4), dictates that its objective must be to enhance the “efficiency and economy” of the court.1 Thus, the mandate must be limited to matters closely linked to that objective, and more specifically, to a reading of the phrase that does not allow the IOM to interfere, through investigation or reporting, with the substantive legal decisions made by the organs of the court.2
Three separate reasons necessitate this limited mandate. First, the Rome Statute itself lays the groundwork for an IOM that plays no role in the legal decision making processes of the court’s organs. On top of the limitations imposed by the “efficiency and economy” language, the Statute contains additional structural elements that require a restricted mandate. Article 42 lays out the requirement of independence for the Office of the Prosecutor (OTP), and Article 40 does the same for Chambers.3 A bureaucratic body with the ability to review legal decisions would go against the strong structural emphasis on independence built into the Rome Statute.
A second argument for a limited mandate is found in the distinct goals of the IOM and two of the ICC’s organs, Chambers and OTP. While the IOM is designed to improve the efficiency and economy of the ICC, judges and prosecutors must have the interests of justice in mind when they make substantive legal decisions.4 These goals could potentially come into conflict in a variety of situations, and good policy dictates that the interests of justice must be given primacy. Restricting the IOM’s ability to interfere in the “justice” decisions of the court would eliminate this problem.
An IOM with an overbroad mandate poses a threat to confidential information as well. If the IOM were allowed to look into all decisions made by the various organs of the court, new challenges regarding the protection of sensitive information would be created. For all of these reasons, the IOM mandate must be restricted to powers in line with improving the efficiency and economy of the court, read narrowly.
I. The Current IOM Mandate Allows Interference in Legal Decision-Making
As it currently drafted, the IOM mandate could permit major interference with substantive legal decisions. Resolution ICC-ASP/9/Res.5, establishing the Independent Oversight Mechanism (IOM), charges the organization with “receiving and investigating” possible acts of misconduct.5 This mandate seems narrow enough, until one examines the definition of misconduct provided in footnote 2. Misconduct is equated to “unsatisfactory conduct”, and 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.”6
So what are the obligations to the Court of various staff and elected officials? And how might an act or omission be considered a violation of those obligations? The IOM is still in its infancy, so with no institutional precedent to examine, we must instead look to the Rome Statute for answers. Unsurprisingly, the Statute is full of provisions that create obligations for Court personnel. For the purposes of this comment, I will point out three linked to substantive legal decisions that the Prosecutor must make on a regular basis: initiating an investigation, what to cover in an investigation, and what evidence to share with the defense.
Article 53(1) states that the Prosecutor “shall” initiate an investigation unless he determines that there is no reasonable basis to proceed.7 This creates an obligation for the Prosecutor: when he determines that there is a reasonable basis to proceed with an investigation, he must proceed (unless it is not in the interests of justice, a separate substantive decision.)8 As the IOM mandate stands now, a complaint about the Prosecutor’s failure to launch a specific investigation could trigger an investigation into whether there was a reasonable basis to proceed, thereby second guessing his legal decision.
After initiating an investigation, Article 54 states that the Prosecutor “shall....extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute, and, in doing so, investigate incriminating and exonerating circumstances equally.”9 Again, an obligation is created for the Prosecutor that would pave the way for IOM review of his or her decisions. In conducting an investigation, the Prosecutor may disregard a body of evidence after coming to the conclusion that it is legally insignificant to the case being built. But if the IOM were to receive a complaint about this decision, it could question the Prosecutor’s decision on the grounds that this evidence is relevant.
The final example pertains to the evidence sharing process known as discovery in U.S. courts. Article 67(2) dictates that the Prosecutor shall “disclose to the defence evidence in the Prosecutor’s possession or control which he or she believes shows or tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence.”10 This is a legal decision in which the Prosecutor must consider the evidence in light of the case at hand in order to determine if it meets any of these criteria. It would be simple enough for defense lawyers to complain to the IOM that relevant evidence was not shared, an omission in violation of the Article 67(2) obligation. This would then allow the IOM to review the Prosecutor’s entire case and rationale for non-disclosure.
The above examples are just a small subset of ways in which the current IOM mandate would allow interference in substantive legal decisions. With the possibility of interference established, my analysis can now turn to the reasons why it must be prevented.
II. Treaty Limitations
The first reason that the IOM mandate must be modified is the most straightforward: the Rome Statute does not provide support for its current powers. Article 31(1) of the Vienna Convention on the Law of Treaties (VCLT) states that a treaty shall be interpreted “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”11 There is no context in Article 112 with which to interpret “efficiency and economy”, which leaves us with two questions: What is the object and purpose of the Rome Statute and how does it shape the ordinary meaning of “efficiency and economy”?
Article 31(2) of the VCLT allows us to examine the entire text and preamble of the treaty in order to determine its object and purpose.12 Language like “ending impunity” and “must not go unpunished” found in several lines of the preamble tells us that furthering justice in the international system is the primary goal of the court.13 However, it is the final line of the Rome Statute’s preamble that is the most telling. The drafters of the Statute were “resolved to guarantee lasting respect for and the enforcement of international justice.”14
The Rome Statute also contains important structural elements that highlight the furtherance of justice as its primary object and purpose. Paramount among these is the focus on independence for Chambers and OTP. Article 40(1) states that “judges shall be independent in the performance of their functions.”15 Article 42(1) does the same for the Prosecutor.16 The importance of independence is also evident in the provisions demanding the recusal or dismissal of judges or Prosecutors acting in cases where they have a conflict of interest.17 In fact, Article 42(5) goes beyond traditional conflict of interest concerns, and forbids the Prosecutor or Deputy Prosecutor from engaging in any activity likely “to affect confidence in his or her independence.”18 The need for these provisions is obvious in light of the Court’s purpose of furthering justice; judges and prosecutors must be free of outside influence in order to make legal decisions based on the merits alone.
The Court’s primary objective and the structural elements of the Rome Statute designed to further it place important limitations on the meaning of “efficiency and economy” as read in Article 112(4). The ordinary meaning of this phrase is tied to the costs of the Court, internal administrative processes, and other factors that have an effect on productivity, such as procedural and budgetary auditing. The expansion of Commerce Clause powers in the U.S. Constitution demonstrates how far similar language can be stretched however, and there are arguments that could expand “efficiency and economy” into all areas of the Court’s work.19 This is where the aforementioned limitations come into play. The Court’s object and purpose of justice and related requirement of independence restricts the ordinary meaning of the statute to those areas that do not deal with substantive legal decisions. Thus, the Rome Statute requires an IOM mandate based firmly around a narrow reading of enhancing “efficiency and economy.”
As the mandate stands now, the IOM may read “efficiency and economy” as broadly as it likes. Reform is required to bring the mandate in line with the standards created by the language and structure of the Rome Statute.
III. Bureaucratic Review of the Court’s Legal Processes is Not in the Interests of Justice
In addition to the treaty based restraints on the IOM mandate, policy grounds also call for reform. The previous section established the object and purpose of the Rome Statute and the ordinary meaning of “efficiency and economy” in order to highlight the disconnect between the current IOM mandate and that envisaged by the Rome Statute. These two concepts also introduce a second problem with the current mandate: it risks conflict between the distinct objectives of the IOM and those of Chambers and OTP. Allowing the IOM, with its “efficiency and economy” concerns, to review the legal decisions of OTP and Chambers, who base their decisions on the interests of justice, will lead to unnecessary organizational friction.
For this very reason, successful domestic criminal justice systems do not possess bureaucratic oversight agencies with authority over legal decisions.20 Whether in the U.S. or Venezuela, prosecutors do not worry about an IOM criticizing their decision to proceed with a trial because it would too expensive or time consuming.21 So why shouldn’t the interests of justice enjoy the same manner of primacy at the ICC? The answer can be found in the following framing: When founding an international court designed to end impunity and bring war criminals and human rights violators to justice, upon what should the staff of the court base their legal decisions? “Efficiency and economy” or the interests of justice?
Good policy dictates a limited role for the IOM. What happens if the example dealing with the scope of investigation from Section II is flipped? This time, the Prosecutor chooses to dedicate investigatory resources to a body of evidence because doing so is important to victim advocacy groups, though it is unnecessary to prove criminal responsibility in light of other available facts. If the IOM chooses to investigate on the grounds that resources were inefficiently utilized, it would be second guessing a legal decision made by the Prosecutor in the interest of justice. Who should triumph here? Though it may be more expensive and time consuming to do so, the Prosecutor may decide that in the interests of justice the investigation should include evidence of great import to the victims. There is no reason to have an oversight body investigate and report on substantive legal decisions if objections raised on efficiency grounds may be overruled by the interests of justice. Yet no one is likely to suggest that the roles be reversed and the IOM’s objectives should become paramount. Thus, the problem should be avoided altogether by reforming the IOM’s mandate in a way that prevents it from investigating and reporting on substantive legal decisions. Without modification of the mandate, the possibility of future objectives-based conflicts will remain.
IV. Risk to Confidentiality
An IOM mandate that permits investigations into any perceived violation of Rome Statute obligations, legal decisions included, will require complete access to information. Resolution ICC-ASP/9/Res.5 attempted to address this by applying the same standards of confidentiality that bind OTP and other court staff to the IOM.22 Yet, if the IOM mandate were restricted to the areas that the Rome Statute and policy consideration demand, little sharing of sensitive information would be necessary. The more that information must change hands, and the more hands it ends up in, the greater the chance that sensitive case facts or victim details could be leaked.
V. Conclusions
The current IOM mandate, by allowing for interference in legal decision making, oversteps the objectives laid out for it in the Rome Statute, poses a risk to institutional harmony, and presents confidentiality concerns. However, this is not to say that the IOM must be scrapped altogether. Reforming the mandate so that it does not allow for interference in legal decision making would be relatively straightforward. If the ASP were to add a clause to the IOM’s investigative function that specifically delineates the Rome Statute obligations (only those tied to “efficiency and economy” read narrowly) that the IOM can investigate, these problems can be avoided. Alternatively, the ASP can add a clause that lists the obligations tied to substantive legal decision making that the IOM cannot investigate in any circumstances. This comment provides a small sampling of such obligations that would be included on such a list. Either of these solutions would resolve the potential problems highlighted in this comment while still preserving the potentially beneficial functions of the IOM.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], at art. 112(4). ↩
I am not arguing that review of legal decisions is unnecessary, only that it should remain solely within the judicial organs of the court, and in rare cases, the ASP. Between Pre-Trial Chambers, Trial Chambers, Appellate Chambers, The Presidency, the Prosecutor, and the ASP, there are already enough review mechanisms in place for legal decisions. For a more complete discussion of this argument, see Grace Lo’s comment. ↩
Rome Statute, supra note 1, at art. 40 and 42. ↩
See id., at art. 53, 55, 61, 65, 67 (each article referencing importance of “interests of justice” in different contexts). ↩
Independent Oversight Mechanism, Resolution ICC-ASP/9/Res.5 (December 10, 2010). ↩
Id. ↩
Rome Statute, supra note 1, at art. 53(1). ↩
Id. ↩
Id., at art. 54(1)a. ↩
Id., at art. 67(2). ↩
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, at art. 31(1). ↩
Id., at art. 31(2). ↩
Rome Statute, supra note 1, Preamble, at para. 4 and 5. ↩
Id., at para. 11. ↩
Id., at art. 40(1). ↩
Id., at art. 42(1). ↩
Id., at art. 42(5)(6)(7) and 41(2). ↩
Id., at art. 42(5) ↩
Returning to the example from Section II, would opening a new investigation (with reasonable basis) spread OTP resources too thin and have a negative impact on other ongoing activities? This possible scenario, along with many others, highlights the presence of both efficiency and justice concerns in commonplace legal decisions. ↩
See Bureau of Justice Statistics, for a compilation of summaries and statistics on 45 domestic criminal justice systems worldwide, available online. ↩
Instead, change comes in the form of checks within the judicial system (i.e. U.S. courts suppress evidence that police have obtained in violation of certain rights) or through legislative action. ↩
Resolution ICC-ASP/9/Res.5, supra note 5, para. 17. ↩
I. Introduction
During the Ninth Session of the Assembly of States Parties (“ASP”), the Independent Oversight Mechanism (“IOM”) became operationalized in its investigative function. However, the IOM, as it is currently structured, would be redundant in light of existing institutional checks in the International Criminal Court (“ICC”).
The IOM’s functions are outlined broadly by the Rome Statute and more specifically by the operational mandate established by the Assembly of States Parties. The IOM’s mandate describes three general functions: investigation, evaluation, and inspection. The investigative function was operationalized in December 2010 while the evaluation and inspection functions are currently in the planning phases. Part II of this comment will discuss the existing oversight structures and Part III will consider what the investigative function of the IOM could contribute when incorporated to the current framework. Lastly, Part IV will analyze the possibilities of the prospective evaluation and inspection function.
II. Existing Oversight Infrastructure
Under the existing oversight infrastructure, investigation of misconduct allegations are not specifically delineated but disciplinary actions are—presumably, investigations are part of these disciplinary processes. The Rome Statute provides the overall framework for oversight while its implementing instruments provide more specific provisions.
For misconduct by staff members1, the Rome Statute grants broad authority to the heads of each organ over their respective staff members. Article 42 states that, “[t]he Prosecutor shall have full authority over the management and administration of the Office [of the Prosecutor], including the staff, facilities and other resources thereof.”2 Outside the Office of the Prosecutor, the Presidency is in charge of the administration of the Court3 with the Registrar acting at the principal administrative officer.4 The Staff Regulations, adopted by the ASP under Resolution ICC-ASP/2/Res. 2, detail the duties of the staff and disciplinary measures for violations of those duties. In line with articles 42 and 43, the Staff Regulations grant the Registrar and the Prosecutor the authority to “establish administrative machinery” for disciplinary cases5 and impose disciplinary sanctions for their respective staffs.6 As such, the Organs already have mechanisms in place for examining allegations of misconduct and administering disciplinary sanctions.
In regards to elected officials (judges, the Prosecutor, Deputy Prosecutors, the Registrar, and the Deputy Registrar), the Rome Statute provides several levels of disciplinary measures. Broadly speaking, all elected officials are held directly accountable by the ASP since the ASP elects them7 and can remove them by vote8 for acts of serious misconduct. For less serious offenses that do not merit removal from office, elected officials are subject to discipline under the Rules of Procedure and Evidence (“Rules”), as adopted by the ASP in Resolution ICC-ASP/1/Res.3 in accordance to article 47. Different officials are held accountable by different aspects of the Court. The Presidency handles disciplinary measures for judges, the Registrar and Deputy Registrar. The ASP determines such actions for the Prosecutor while the Prosecutor and the ASP jointly oversee the Deputy Prosecutor.9 Additionally, disciplinary measures for misconduct before the Court under article 71 are determined by the Presiding Judge.10 As such, officials are currently held accountable by various external disciplinary measures for different forms of misconduct.
III. Investigative Function of the IOM
Resolution ICC-ASP/9/Res.5 establishes the framework of the IOM’s investigative function. According to that resolution, the IOM has authority to 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 […], all staff […] and all contractors and/or consultants.”11 “Misconduct”, also characterized as “unsatisfactory conduct,” is defined as “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 […]”.12 By this definition, the IOM’s scope is limited to “misconduct” as characterized by existing documents. Thus, the IOM, at most, has the authority to investigate the same types of allegations that the current framework already allows and does not expand oversight in terms of breadth.
Furthermore, the IOM would not lead to deeper or more thorough investigations. In regards to misconduct by staff members and contractors, the existing institutional checks provide broad oversight through the Staff Regulations. IOM’s mandate is actually more limited in investigations than these current checks. The operational mandate states that the IOM “will not investigate contractual disputes or human resource management issues, including work performance, conditions of employment or personnel-related grievances.”13 For the allegations that the IOM does have authority over, the investigations would merely duplicate the organs’ own efforts during their disciplinary processes.
As stated in Part II, misconduct by elected officials is governed by the Rome Statute and the Rules. However, the interaction between those existing disciplinary mechanisms and the new IOM’s mandate is not entirely clear. An earlier draft of the operational mandate, Resolution ICC-ASP/8/Res.1, stated that “the functions of the independent oversight mechanism shall replace the investigative role of the Presidency in respect of complaints received against elected officials.”14 This would mean that the Presidency would no longer investigate as part of their disciplinary process and would instead defer to the IOM. However, this language does not appear in the current operational mandate. Resolution ICC-ASP/9/Res.5 does state that the IOM “shall not affect the Presidency, Registrar or Prosecutor’s power to impose disciplinary measures pursuant to the relevant regulations and rules.”15 While, this provision does not directly relate to the investigative aspect of those disciplinary powers, it could imply that the Organs are not obligated to defer to the IOM’s findings and recommendations. Thus, the Organs would still investigate allegations of misconduct themselves. Since the IOM has not yet been tested in action, the operational mandate remains ambiguous as to whether the IOM is meant to entirely replace or merely supplement the investigative roles of the Organs.
If the IOM is meant to entirely replace the Court’s extant investigative capacity, then its investigative function would not be redundant. However, in execution, it would likely prove less effective than the current scheme. Again, the scope of the IOM mandate does not encompass all possible misconduct by elected officials. The mandate expressly excludes offenses under article 70 of the Rome Statute.16 As such, the Court would still need to retain some investigative capacity, creating a patchwork investigative system open to overlap and conflict. Additionally, IOM’s investigation processes would not improve on the current structure. At best, the IOM could receive the same information that the present institutional checks would receive. However, in practice, the IOM would likely receive less information since the independence of the IOM separates it from the Court. Routing information to an external body creates an extra layer of red tape. Furthermore, increased disclosures, especially to an external body, create a security risk for potentially confidential information. As such, information sharing may be more contested. Moreover, the Court is still responsible for the final disciplinary action; thus any results of IOM investigations still needs to be reported to the Court, creating an added layer of bureaucracy with no corresponding benefit.
If the IOM is meant to supplement the present investigation processes, then the IOM would be entirely redundant. The ASP did not mandate broader investigative authority to the IOM beyond what the organs are already capable of—the IOM would not have investigative capabilities in any greater breadth or depth. Introducing an external investigative body would only be relevant if the existing institutions have proven themselves wholly unable to execute the disciplinary framework and incapable of improvement. This has not been the case. These mechanisms were tested in the very first case when allegations arose that the Prosecutor wrongly withheld information from the defense in The Prosecutor v. Thomas Lubanga Dyilo. The institutional checks succeeded and sanctioned the Prosecutor for misconduct.17 The system again proved effective in investigating and disciplining the OTP when the Prosecutor failed to disclose identifying information regarding an intermediary.18
Since the current Court disciplinary mechanisms already encompass functional investigative capabilities, the IOM has limited value to the Organs. Arguably, the IOM could be valuable playing an investigative role for ASP actions—i.e. investigating elected officials for possible removal from office or determining disciplinary actions for the Prosecutor under the Rules. However, while the ASP undoubtedly needs an investigative mechanism in such situations, these cases do not arise often. If the IOM’s only unique contribution to the Court is to investigate these situations, it would not need to be established as a standing body. Such a set-up would be unwarranted and counter-productive as an unnecessary use of resources.
IV. Other Possible Functions of the IOM
The IOM does not contribute to the efficiency of the Court with only an investigative function. However, as noted in the opening, the ASP alluded to adding evaluation and inspection functions to the IOM’s mandate in Resolution ICC-ASP/8/Res.1. These functions have not yet been operationalized and may never be operationalized. The ASP will consider this issue in the next Session.
If an evaluation and inspection function is activated, the IOM could improve the Court by assessing current Court practices or anticipated changes in Court practices and issuing advisory reports to the relevant Organ and/or the ASP. Such a function could prove beneficial in identifying problems and suggesting solutions for issues of efficiency in general daily practices and procedures. Presumably, Organs already contemplate efficiency concerns in enacting their protocols but the IOM would have a broader and more neutral view. The practical execution of such a function may create greater inefficiencies than it would yield since such assessments would require constant monitoring and considerable information-gathering. For such a function to be beneficial, the IOM would need to coordinate with existing bodies that have similar functions, such as the Audit Committee, and have a clearly defined and limited mandate. A well-tailored evaluation and inspection mandate could create a constructive and beneficial IOM.
V. Conclusion
The IOM’s goals of ensuring efficient oversight are laudable, but with the current mandate, the IOM’s investigative function is almost completely duplicative of existing oversight mechanisms. In practice, it would be at best redundant and at worst a new bureaucratic hurdle. However, if the ASP expands its functions to include evaluation and inspection, the IOM could prove to be a useful institution.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
For the purposes of this comment, “staff” will refer to staff members under the terms of article 44 of the Rome Statute—namely, those appointed by the Prosecutor and the Registrar as required for their respective offices. ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute]. ↩
Id. art. 38. ↩
Id. art. 43. ↩
Staff Regulations reg. 10.1, ICC-ASP/2/Res. 2 (Sept. 12, 2003). ↩
Id. reg. 10.2. ↩
Rome Statute , supra note 2, arts. 36, 42, 43. ↩
Id. art. 46. ↩
Rules of Procedure and Evidence r. 30, ICC-ASP/1/3 (Sept. 2002) [hereinafter Rules]. ↩
Id. rs. 170, 171. ↩
Independent Oversight Mechanism, Annex ¶ 2, ICC-ASP/9/Res.5 (Dec. 10, 2010). ↩
Id. fn. 2. ↩
Id. ¶ 5. ↩
Establishment of an independent oversight mechanism, Annex ¶ 10, ICC-ASP/8/Res.1 (Nov. 26, 2009). ↩
Resolution ICC-ASP/9/Res.5, supra note 11, Annex ¶ 19. ↩
Id. ¶ 6. Article 70 pertains to offenses against the administration of justice, such as present false evidence. Article 71 is about misconduct before the Court, such as disrupting proceedings. Rome Statute arts. 70, 71. Because the same conduct can be both an article 70 and 71 offense, this exception to the IOM mandate creates another area of ambiguity. The Rules of Procedure and Evidence state that if such an overlap exists under both articles 70 and 71, the Court is to proceed according to the Rules for an article 70 offense only. Rules r.172. The mandate does not state whether the IOM will defer to this rule or proceed with its parallel investigation as an offense under article 71. Another possibility is that the ASP will modify the Rules to better incorporate the IOM. ↩
Press Release, ICC, Trial Chamber Imposes a Stay on the Proceedings of the Case Against Thomas Lubanga Dyilo, (Jun. 18, 2008). ↩
Press Release, ICC, The Appeals Chamber Reversed the Decisions to Stay Proceedings and to Release Thomas Lubanga Dyilo, (Oct. 08, 2010) ↩
Introduction
There are two dominant theories that inform the current debate. The first theory focuses on agency costs, while the second makes the concept of trusteeship the focal point of the analysis. In this essay, I will argue that the agency framework is not appropriate in the context of the ICC.
The Trusteeship Model
Under the trusteeship model, trustees are actors who are given authority to make meaningful decisions according to their own best judgment and professionalism on behalf of a beneficiary. The trustee is usually chosen based on their personal and/or professional reputation.1 Unlike traditional agents, trustees are not expected to strictly act in line with recommendations by the principal who delegated authority to them. Rather, trustees have what is termed “rational-legal authority” or “expert authority.” Rational-legal authority refers to the notion of a disinterested trustee who follows pre-existing rules and procedural justice in his/her decisions, while expert authority means that the trustee may have specialized knowledge. Principals delegate to trustees in order “to capture the benefits of the trustee’s decision-making reputation and/or to remove the taint of “politics” as shaping trustee decision-making.”2
Global interdependence has brought about a situation, however, where States often consider it beneficial to relinquish some degree of their autonomy and delegate to international institutions.3 This is particularly relevant in the international criminal law arena where the apprehension and prosecution of suspected war criminals requires a high level of inter-state cooperation.
The ICC Prosecutor may be viewed as a “trustee” of the parties to the Rome Statute. The ICC Prosecutor brings with him personal and professional authority and exercises a certain degree of discretional authority.4 Under the trusteeship model, there is a presumption in favor of prosecutorial independence over control by the Member States.
This has a number of important consequences. First, for any mechanism to actively interfere with the functioning of the ICC Prosecutor would amount to States’ reneging on their primary commitment to the independence and authority of the ICC. Second, justice cannot be administered except under conditions of freedom from special interests whether national, economic or otherwise. Subjecting the ICC Prosecutor to excessive oversight from Member nations and special interest groups creates a substantial risk that such conditions would be inherently undermined. To expect Prosecutors to maintain objectivity and independence in the face of such constraints is highly unrealistic. The ICC Prosecutor must have a considerable degree of autonomy to carry out his or her functions. It is perhaps difficult for States to allow such autonomy from the perspective of their own particular short-term interests. However, if international justice is truly their aim, no less can be expected of them. The Prosecutor is not an agent of politics but an agent of international justice. Justice should stand in opposition to politics and power.
The Agency Model
Under the agency framework, the relationship between the ICC and the States which created the Court under the Rome Statute is conceptualized as a principal-agent relationship. The States act as the principal in this context and confer some of their powers onto the ICC. The ICC, on the other hand, undertakes to act on behalf of the States.
Because the relationship is defined as a principal-agent relationship, it is presumed that the States must exercise a certain degree of control over the agent. Control “is generally recognized as being an essential element of an agency relationship.”5 Owing to the risk of “agency costs”—i.e. the risk that the ICC may act more broadly than intended and exceed the powers conferred on it by the Member States—there is a need to create various mechanisms to mitigate such costs. The theory holds that States should be reluctant to grant broad powers to the institutions they set up given the possibility that such institutions may take on a life on their own and transform themselves into disloyal agents. Moreover, the States should seek to impose “monitoring constraints” to reign in the institutions they established.
Existing Accountability Mechanisms
The powers of the ICC Prosecutor are delineated in the Rome Statute. The Rome Statute provides that the Prosecutor is responsible for examining information on crimes, conducting investigations and prosecutions before the Court. This is stipulated in Article 42(1) of the Statute. The Prosecutor has “full authority over the management and administration of the Office, including the staff, facilities and other resources thereof.”6 The ICC Prosecutor must act independently when receiving referrals or information on crimes within the jurisdiction of the ICC. This obligation also extends to Deputy Prosecutors who are authorized to act on behalf of the Prosecutor and whose function is to assist the Prosecutor. Both the Prosecutor and Deputy Prosecutor must be of a high moral character, as required by Article 42(3) of the Rome Statute. Article 42(3) expressly provides that the “Prosecutor and the Deputy Prosecutors shall be persons of high moral character, be highly competent in and have extensive practical experience …”7
Article 40(2) addresses the question of judicial independence, stating that “judges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.” The equivalent of Article 40(2) is Article 42(5) which applies to the Prosecutor. Article 42(5) states that: “Neither the Prosecutor nor a Deputy Prosecutor shall engage in any activity which is likely to interfere with his or her prosecutorial functions or to affect confidence in his or her independence.” Thus, the language of Article 20(2) and Article 42(5) is virtually identical, which suggests that the Rome Statute imposes the same standards of independence on both judges and the Prosecutor and Deputy Prosecutors. The Prosecutor is an officer of the Court and, like a judge, the Prosecutor must be impartial in the exercise of his powers and functions. Article 42(7) further states:
Article 42(7) is a stringent provision. Its primary objective is to remove the possibility of the Prosecutor acting as a self-interested, opportunistic and politically-motivated party.
The Prosecutor is also accountable to the ICC Assembly of States Parties. Article 42(4) of the Rome Statute states as follows:
Article 42(4) was inserted into to the Rome Statue to ensure that the Prosecutor and the Deputy Prosecutors would act for a limited time and carry out their function with utmost regard to their prosecutorial functions and independence. Article 42(4) is supported by Article 46(1) which deals with the removal of judges, the Prosecutor and Deputy Prosecutors. The Article states:
The provision operates in conjunction with Article 46(2) which provides:
Finally, the Prosecutor is accountable to the States themselves. The ICC is dependent on states to carry out its functions. The ICC Prosecutor is particularly dependent on states when carrying out investigations. Article 86 of the Rome Statute states: “States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court. However, the legal consequence of non-compliance with requests from the ICC is rather weak. Art. 87(7) of the Rome Statute provides:
State Parties can deny requests for assistance, either wholly or partly. They are not responsible for the production of any documents or disclosure of evidence which relates to their “national security.” The concept of national security is arguably broad, and many requests could be denied under this rubric. The Rome Statute gives the States wide discretion in their dealings with the ICC Prosecutor. The States can use these discretions to influence the Prosecutor and ultimately hold him accountable to them. Moreover, States can intervene to remove a case from the ICC. They can also act to limit financial assistance provided to the ICC.
Viewing the ICC as an agent of its Member States implies that certain control measures are appropriate. However, the principal-agent framework does not provide a precise answer as to what degree of control is appropriate, although it may be argued that the theory supports a high degree of control given the focus of the theory on agency costs.
What is the Appropriate Model?
It is highly questionable whether the relationship between the ICC and its Member States should be viewed as a classical principal-agent relationship. There is a presumption in international law against the creation of principal-agent relationships between international organizations and their Member States. As Sarooshi notes:
This presumption, however, can be displaced if there is evidence of de facto agency.14 The notion of de facto agency may be defined as “control being exercised by Member States over an organization which is outside the confines of the decision-making processes of the organization.”15
The theory, when applied to the ICC, would seem to suggest that the general presumption holds and is thus not rebutted. States, acting collectively through the ICC Assembly of the States, can exercise some control over the ICC, but they are constrained in the sense that they cannot interfere with the decision making processes of the Court and the Prosecutor itself. The ICC has been established with a clear mandate and is obligated to act independently of the States in pursuit of this mandate. This mandate is clearly spelled out in Article 1 of the Rome Statute which says that the ICC is a permanent institution that is created with the purpose of exercising jurisdiction over persons “for the most serious crimes of international concern.”16
The ICC is a separate juridical person from the Member States. This is reinforced by Article 4(1) of the Rome Statute which states that the “Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes.”17 Further, the Article states that the “Court may exercise its functions and powers, as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.”18 Hence, the Court must act in accordance with this mandate and is not obliged to act in conformity with the interests of a particular Member State or groups of Member States.
It is inappropriate to view the Rome Statute as a principal-agent contract between the ICC and the Member States. “The relationships … [created by the Treaty] are not those of partners or of principal and agent but of an organization and its members.”19 I have argued in this essay that a better view is to conceptualize the ICC Prosecutor as a trustee of the States rather than an agent. The terms of the trusteeship are clearly set out in the Rome Statute, and the ICC Prosecutor is subject to a wide range of constraints which render the imposition of additional oversight mechanisms largely obsolete. By signing the Rome Statute, the Member States have impliedly consented to be bound by the actions of the ICC, including the ICC Prosecutor. Moreover, the States have stipulated a range of measures in the Rome Statute to reduce the risk of agency costs. These measures are extensive and sufficient to reduce agency costs. States are only bound by the actions of the international bodies such as the ICC because they have consented to grant authority to them.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Karen Alter, Agents or Trustees? International Courts in Their Political Context, European Journal of International Relations 14 (1) 2008: 33-63. (Alternate PDF Version, Sage Journals paywall, SSRN paywall) ↩
Id. 7. ↩
Oona A. Hathaway, “International Delegation and State Sovereignty,” 71 Law and Contemp. Probs. 115, (Winter 2008). (PDF Version, SSRN paywall) ↩
Alter, supra note 1, at 7. ↩
Dan Sarooshi, Some Preliminary Remarks on the Conferral by States of Powers on International Organizations (2003, Jean Monnet Working Paper 4/03) available online (last accessed April 22, 2011). ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17 1998, UN Doc. A/CONF.183/9 [hereinafter cited as Rome Statute], Article 42(2). ↩
Id., Article 42(3). ↩
Id., Article 42(7). ↩
Id., Article 42(4). ↩
Id., Article 46(1). ↩
Id., Article 46(2). ↩
Id., Article 87(7). ↩
Sarooshi, supra note 5, at 50. ↩
Id. ↩
Id. at 56. ↩
Rome Statute, supra note 6, Article 1. ↩
Id., Article 4(1). ↩
Id., Article 4(2). ↩
Maclaine Watson v. International Tin Council, Chancery Division, [1989] Ch. 253, 257. ↩