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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?”

Alma Pekmezovic
919
May 6, 2011
7:32 am

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:

Neither the Prosecutor nor a Deputy Prosecutor shall participate in any matter in which their impartiality might reasonably be doubted on any ground. They shall be disqualified from a case in accordance with this paragraph if, inter alia, they have previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted.8

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:

The Prosecutor shall be elected by secret ballot by an absolute majority of the members of the Assembly of States Parties. The Deputy Prosecutors shall be elected in the same way from a list of candidates provided by the Prosecutor. The Prosecutor shall nominate three candidates for each position of Deputy Prosecutor to be filled. Unless a shorter term is decided upon at the time of their election, the Prosecutor and the Deputy Prosecutors shall hold office for a term of nine years and shall not be eligible for re-election.9

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:

A judge, the Prosecutor, a Deputy Prosecutor, the Registrar or the Deputy Registrar shall be removed from office if a decision to this effect is made in accordance with paragraph 2, in cases where that person: (a) Is found to have committed serious misconduct or a serious breach of his or her duties under this Statute, as provided for in the Rules of Procedure and Evidence; or (b) Is unable to exercise the functions required by this Statute.10

The provision operates in conjunction with Article 46(2) which provides:

A decision as to the removal from office of a judge, the Prosecutor or a Deputy Prosecutor under paragraph 1 shall be made by the Assembly of States Parties, by secret ballot: (a) In the case of a judge, by a two-thirds majority of the States Parties upon a recommendation adopted by a two-thirds majority of the other judges; (b) In the case of the Prosecutor, by an absolute majority of the States Parties; (c) In the case of a Deputy Prosecutor, by an absolute majority of the States Parties upon the recommendation of the Prosecutor.11

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:

Where a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.12

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:

When Member States ratify a constituent treaty that confers powers on an organization they are consenting thereby to the organization exercising the power in question, but they are not necessarily consenting to the organization exercising the power on their behalf (as an agent) such that it can change their legal rights and obligations.13

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).

1.
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) ↩
2.
Id. 7. ↩
3.
Oona A. Hathaway, “International Delegation and State Sovereignty,” 71 Law and Contemp. Probs. 115, (Winter 2008). (PDF Version, SSRN paywall) ↩
4.
Alter, supra note 1, at 7. ↩
5.
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). ↩
6.
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). ↩
7.
Id., Article 42(3). ↩
8.
Id., Article 42(7). ↩
9.
Id., Article 42(4). ↩
10.
Id., Article 46(1). ↩
11.
Id., Article 46(2). ↩
12.
Id., Article 87(7). ↩
13.
Sarooshi, supra note 5, at 50. ↩
14.
Id. ↩
15.
Id. at 56. ↩
16.
Rome Statute, supra note 6, Article 1. ↩
17.
Id., Article 4(1). ↩
18.
Id., Article 4(2). ↩
19.
Maclaine Watson v. International Tin Council, Chancery Division, [1989] Ch. 253, 257. ↩

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