IER Blog Series: Governance Tackled

This blog is part of a series on selected aspects of the ICC Independent Expert Review Final Report released on September 30, 2020.

Governance issues lie at the heart of many of the International Criminal Court’s (ICC) internal problems and tension with the Assembly of States Parties (ASP). A court, by its nature, is meant to be independent, but the ICC is accountable to the ASP, a body made up of states that agreed to subject themselves to its jurisdiction. How can those two fundamental principles be reconciled?

Through the final Independent Expert Review report, the experts propose a foundation for more functional governance by pointing to the dual nature of the court as both a judicial institution (ICC-court) and an international organization (ICC-IO). As a judicial entity the court is judicially independent, a status that should be vigorously guarded in order to ensure the ICC’s credibility. However, the experts point out, it is also an international organization, which states parties expect to “guide and shape”.
This distinction is relevant because, as the report indicates, defining what falls under state party guidance without trampling on judicial and prosecutorial independence has been problematic in the past.

The Three-Layered Model

To make the distinction clear the experts devise a useful three-layer model as the basis for their governance recommendations:

  • Layer one, judicial and prosecutorial activity (ICC-court);
  • Layer two, administration of justice (ICC-court);
  • Layer three, administration of the international organization (ICC-IO).

The experts indicate that the ICC-IO “indirectly supports” the ICC-court, including on administrative matters, and is led by the registrar. States parties are deeply involved in the ICC-IO as they elect officials and provide funds. This is distinct from the ICC-court, which the experts further divide into “judicial and prosecutorial activity” and “the administration of justice.”
“Judicial and prosecutorial activities” require complete and total independence, including from states parties. The administration of justice, according to the experts, does not “necessitate the same degree of independence” as judicial and prosecutorial activity. The experts take the view that the administration of justice at the ICC should be audited, just as is the case in national systems.

The experts say that states parties should not influence judicial and prosecutorial activity in any way, “whether through budget decisions or appointments.” This is important because state party control over the budget has negatively affected the prosecutor’s ability to do her job. For example, for several years, some influential states parties have been pushing for a “zero nominal growth” budget, which means no budgetary increase, despite inflation and an increase in the workload.

However, the experts also state that the Court should “accept the legitimate authority of the ASP to decide its budget and should tailor its activities to match the resources available.” Where is the line between undue influence on a judicial body and reasonable state expectations of a court to live within budgetary limits? Resolving the tension between providing sufficient funds and pressuring the prosecutor to work within the confines of the budget will continue to be difficult. More can and should be done to ensure the prosecutor has the funds required to get the job done. As we have seen in the past, insufficient funds, among other factors, contributed to the hibernation of the Darfur cases in 2014. In her recent statements on Nigeria and Ukraine the prosecutor highlighted the “limitations of operational capacity due to overextended resources.”

Empowering the Registrar

In the aforementioned Three-Layered Model, of particular interest is Layer Three, in which the experts propose a significant increase in the registrar’s power and influence, considering the registrar as the equivalent of a secretary-general of the ICC-IO as well as serving as the registrar of the ICC-court.

This distinction has consequences. First, for all matters pertaining to the ICC-IO, the experts suggest that the registrar report to states parties, whereas she or he would continue to report to the ICC presidency for court-related matters.

Second, the recommendation would increase the registrar’s responsibilities. According to the experts, the registrar should be “responsible for the development and implementation of administrative processes and policies, including budget. Other principals shall be consulted, but the registrar remains the decision-maker.” The experts go further to encourage the incoming prosecutor to delegate the services or activities within the OTP that pertain to administrative matters. This is a shift from current practice where the registrar reports to the Presidency by default, and the OTP has services (for example, translation) that duplicate those of the registry.
The experts express support for the One Court Principle, especially with regard to Layer Three, calling for the consistent application of ethical standards, values, staff regulations, and disciplinary procedures. The experts also provide recommendations to improve the ICC’s inter-organ collaboration, including suggesting that an extended Coordination Council regularly bring the principals and the head of independent offices (such as the Trust Fund for Victims) together to ensure coordination at the very top.
Election of the registrar and deputy registrar: the need for an expert committee.

The experts see a greater role for the ASP in the election of the registrar. Currently, the ICC Presidency establishes a list of candidates who meet Rome Statute requirements and sends it to the ASP with a request for recommendations. The ICC president then transmits the list together with any recommendations from the ASP to the judges, who elect the registrar by absolute majority.

The Justice Initiative has previously raised how problematic this is and recommended the creation of an expert committee to nominate the registrar. The report shares this view, recommending that the ASP conduct a selection process with the assistance of an expert committee. That committee would also be tasked with vetting candidates, performing background checks, conducting interviews, and producing a short list for states parties. The ASP would then confirm the shortlist and send it to the judges for their decision. This would significantly improve the current system, in which such decisions lie exclusively with the judges. Another option would be for the committee to identify the strongest candidate and for the ASP to confirm that candidate, or for the judges as well as the ASP to be part of the confirmation process.

The experts also note that the prospect of a registrar’s reelection raises concerns such as the incentive for the incumbent registrar to favor judges in a bid to secure reelection. They suggest that in the long term the provisions should be changed to allow a non-renewable seven to nine year mandate for the registrar.

If there were a deputy registrar, the experts suggest that she or he be elected in the same manner as the registrar, and possibly simultaneously, to ensure gender and regional balance as well as complementary profiles.

The experts’ findings and recommendations on governance with respect to the ICC as an IO and as a court clarify the lines of reporting, provide structure, and most importantly, preserve judicial and prosecutorial independence without absolving the ASP of its responsibilities to provide oversight of the ICC-IO. The recommendation on the appointment procedure for the registrar is crucial and long overdue. This chapter lays a solid foundation for the rest of the report by emphasizing indispensable values, including the protection of judicial and prosecutorial independence, efficiency, effectiveness, gender equality, inclusion, and staff wellbeing.