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) ↩

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. ↩

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. ↩