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).

1. 1.

   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. ↩

2. 2.

   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]. ↩

3. 3.

   Id. art. 38. ↩

4. 4.

   Id. art. 43. ↩

5. 5.

   Staff Regulations reg. 10.1, ICC-ASP/2/Res. 2 (Sept. 12, 2003). ↩

6. 6.

   Id. reg. 10.2. ↩

7. 7.

   Rome Statute , supra note 2, arts. 36, 42, 43. ↩

8. 8.

   Id. art. 46. ↩

9. 9.

   Rules of Procedure and Evidence r. 30, ICC-ASP/1/3 (Sept. 2002) [hereinafter Rules]. ↩

10. 10.

    Id. rs. 170, 171. ↩

11. 11.

    Independent Oversight Mechanism, Annex ¶ 2, ICC-ASP/9/Res.5 (Dec. 10, 2010). ↩

12. 12.

    Id. fn. 2. ↩

13. 13.

    Id. ¶ 5. ↩

14. 14.

    Establishment of an independent oversight mechanism, Annex ¶ 10, ICC-ASP/8/Res.1 (Nov. 26, 2009). ↩

15. 15.

    Resolution ICC-ASP/9/Res.5, supra note 11, Annex ¶ 19. ↩

16. 16.

    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. ↩

17. 17.

    Press Release, ICC, Trial Chamber Imposes a Stay on the Proceedings of the Case Against Thomas Lubanga Dyilo, (Jun. 18, 2008). ↩

18. 18.

    Press Release, ICC, The Appeals Chamber Reversed the Decisions to Stay Proceedings and to Release Thomas Lubanga Dyilo, (Oct. 08, 2010) ↩