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- 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)
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- 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 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.
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.
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. ↩
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). ↩
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. ↩
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. ↩
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. 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. ↩
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. ↩
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. ↩