Chapter 12
In: Contemporary Issues Facing the International Criminal Court
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During 2010 a debate arose about the legitimate scope of the proposed mandate of the Independent Oversight Mechanism (iom), a subsidiary body of the Assembly. The iom had been established by the Assembly under Article 112(4) of the Rome Statute to enhance the Court’s efficiency and economy. The issues that arose concerned particularly the role of the iom towards the Office of the Prosecutor (otp), given the latter’s guarantee of independence under Article 42.
The proposal for the iom to deal with reports of misconduct in the otp was as follows. Clause 2 of the draft Annex to the iom Operational Mandate envisioned the iom receiving and investigating reports of misconduct. By Clause 3 any such reports received by the Court (which, it is inferred, includes the otp) had to be submitted to the iom. By that clause staff members submitting a report against another staff member might elect to submit a copy to (relevantly) the Prosecutor. Clause 17 provided that the iom might notify the Prosecutor of the receipt of a report. Clause 4 required the iom to transmit the results of investigations to the Prosecutor. The proposal, therefore, did not require or ensure that the Prosecutor be aware of a report against staff and it gave no role to the Prosecutor in dealing with any such report. The only requirement on the iom was to inform the Prosecutor of the outcome of its investigation.
In any event, references to “management oversight” and “oversight mechanism” in Article 112 import the idea of “superintendence,” rather than direct involvement in management and administration (such as dealing with reports of misconduct). That is, the iom may only properly concern itself with overall, high level, examination and coordination of the operation of the Court and the interrelationship of its organs, including responding to referrals by the organs themselves, for the express and limited purposes of enhancing the efficiency and economy of the Court.
The Rome Statute, properly construed, does not empower the iom to deal with alleged misconduct of staff of an organ of the Court.
That role is expressly reserved to (relevantly) the Prosecutor by the terms of Article 42(2) of the Rome Statute. There is a clear and express mandate given to the Prosecutor