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- Alma Pekmezovic: The ICC Prosecutor has recently submitted a request to the Pre-Trial Chamber of the ICC to authorize an investigation into crimes committed in Côte d’Ivoire. The post-election violence in the Ivorian territory led to serious crimes including murder of civilians, rape and other sexual violence, arbitrary detentions and the use of child soldiers. The decision of the ICC Prosecutor to act on his initiative and ask the Pre-Trial Chamber for permission to investigate the human rights violations in... (more)
- BBM: It is essential that the ICC maintain its independence, actual and perceived. The role of ASP having oversight over the Court to facilitate efficiency and economy is a poor idea, although pursuant to Art. 112 (4). The dangers as I see it, are lack of independence, and the ICC taking on a role similar to the ICJ with respect to its advisory opinions. As we know the ICJ finds itself in a catch 22 situation with requests for advisory opinions put forward by the UNGA. In this case the ICJ... (more)
- danterzian: The IOM Operational Mandate’s proposed oversight mechanism is a constitutional restriction of prosecutorial independence. Introduction Article 112(4) of the Rome Statute grants the Assembly of States Parties (“Assembly”) the discretion to “establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and... (more)
- 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)
- Cecilia: The Independent Oversight Mechanism will consume the resources of the International Criminal Court and will adversely affect the court’s ability to perform its functions effectively. Introduction The Independent Oversight Mechanism as envisaged by the Rome Statute could potentially serve an important function in enhancing the International Criminal Court’s efficiency and economy. However, the mechanism... (more)
- Scott McDonald: The creation of the Independent Oversight Mechanism (IOM) presents a new set of challenges and opportunities for the International Criminal Court (ICC). In order to capitalize on the benefits that the IOM may be able to provide, the Assembly of States Parties (ASP) must ensure that it is built upon a solid foundation: a properly tailored mandate. The Rome Statute provision that allowed the ASP to create... (more)
- 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?”
It is essential that the ICC maintain its independence, actual and perceived. The role of ASP having oversight over the Court to facilitate efficiency and economy is a poor idea, although pursuant to Art. 112 (4).
The dangers as I see it, are lack of independence, and the ICC taking on a role similar to the ICJ with respect to its advisory opinions. As we know the ICJ finds itself in a catch 22 situation with requests for advisory opinions put forward by the UNGA. In this case the ICJ becomes a tool of the UNGA placing a judicial imprimatur on poorly crafted and leading questions with pre-ordained outcomes. This creates a confict of interest. While there are a number of criteria by which the ICJ can turn down an advisory opinion it hardly ever does. The last time I recall it doing so was in the Carella case when it was the PCJ.
the point to be made is that when you get external bodies, such as the ASP, providing oversight we need just look at the ICJ for the historical precedent set by that organ. Although there are differences in the structure between the ICJ and the UN, from a macro perspective, the dangers are there as to the ASP meddling into the functioning of the Court.
This would not be the first time that provisions of the ICCSt. are inconsistent with other provisions of the Statute, the RPE, and the Regulations of the OTP, Court and Registry. Before delving into an oversight body more fudnamental issues need to be resolved, such as the true role of victim participaton under Article 68.