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).

1. 1.

   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]. ↩

2. 2.

   Independent Oversight Mechanism, Resolution ICC-ASP/9/Res.5 (December 10, 2010). ↩

3. 3.

   International Criminal Court Assembly of States Parties take place in New York., Foreign and Commonwealth Office, Dec. 7, 2010, available online ↩

4. 4.

   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. ↩

5. 5.

   Id. ↩

6. 6.

   Resolution ICC-ASP/9/Res.5, supra note 2, at para. 21-22. ↩

7. 7.

   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”). ↩

8. 8.

   Id. ↩

9. 9.

   Id., at para. 21. ↩

10. 10.

    Id., at para. 22. ↩

11. 11.

    Id., at para. 24. ↩

12. 12.

    Id. ↩

13. 13.

    Id. ↩

14. 14.

    Id., at para. 25. ↩

15. 15.

    Id., at para. 24. ↩

16. 16.

    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.”). ↩

17. 17.

    Id., at para. 15. ↩

18. 18.

    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....”). ↩

19. 19.

    Id., at para. 15. ↩

20. 20.

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

21. 21.

    Lucia DiCicco, “Recommendations for the Establishment of an Independent Oversight Mechanism for the ICC,” AMICC, July 28, 2009, available online. ↩

22. 22.

    Id. ↩

23. 23.

    See Steven C. Roach, Politicizing the International Criminal Court, 52-53 (Rowman & Littlefield Publishing Group, Inc., 2006). ↩

24. 24.

    Id. ↩