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:

[N]ot in any way impede the authority or independence granted by the Rome Statute to the Presidency, judges[,] Registrar or Prosecutor of the Court. In particular, [it must] fully respect[] the notions of judicial and prosecutorial independence and its activities will not interfere with the effective functioning of the court.29

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).

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.

   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. ↩

3. 3.

   Rome Statute, supra note 1, at art. 112(4). ↩

4. 4.

   Id. at art. 42(1). ↩

5. 5.

   Id. at art. 40. ↩

6. 6.

   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”). ↩

7. 7.

   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. ↩

8. 8.

   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”). ↩

9. 9.

   IOM Report, supra note 2, at annex ¶ 16; see generally Rome Statute, supra note 1, at arts. 54, 57, 64, 68, 72, 93. ↩

10. 10.

    Rome Statute, supra note 1, at art. 93(8). ↩

11. 11.

    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…” ↩

12. 12.

    Id. at art. 118. ↩

13. 13.

    Id. ↩

14. 14.

    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”). ↩

15. 15.

    See note 3, supra, and accompanying main text; see also Rome Statute, supra note 1, at art. 42(2). ↩

16. 16.

    July 2002 Report, supra note 14, at ¶ 38, ↩

17. 17.

    Id. at ¶ 107. ↩

18. 18.

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

19. 19.

    For other examples of how the Rome Statute restricts prosecutorial independence, see notes 6, 7, 8, supra, and accompanying main text. ↩

20. 20.

    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). ↩

21. 21.

    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. ↩

22. 22.

    Id. at 224 (emphasis added). ↩

23. 23.

    IOM Report, supra note 2, at ¶ 71. ↩

24. 24.

    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”). ↩

25. 25.

    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. ↩

26. 26.

    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”). ↩

27. 27.

    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). ↩

28. 28.

    Id. at annex ¶ 4 (emphasis added). ↩

29. 29.

    Id. at annex ¶ 19. ↩

30. 30.

    Id. at annex ¶ 16. ↩

31. 31.

    See note 22, supra, and accompanying main text. ↩