Monday, May 9, 2011

ICC: The Proper Balance between Independence and Oversight

The UCLA Human Rights and International Criminal Law Online Forum has a new discussion topic on the question of 'the proper balance between the independence of the International Criminal Court and the oversight role of the Assembly of States Parties regarding the Court’s administration under Article 112 of the Rome Statute'.

There are excellent contributions from Professor Alvarez of NYU, Professor Cowdery of University of Sydney, Akbar Khan of the Commonwealth Secretariat and Professor van der Wilt of the University of Amsterdam. And one from ourselves.

In our comment we attempted to address the question broadly – situating it in the context of the debates over the proper role of the ASP generally – and tactfully avoided the more focussed (and difficult) question of balancing the “independence of the Court” with the ASP’s specific role under article 112. We did so for a number of reasons.

First, we argued that the debate over the Independent Operating Mechanism and the Prosecutor’s objection thereto (which inspired this discussion topic) was not about the abstract principle of “independence”, but rather a question of policy and “organisational autonomy”. In this regard we discussed the arguments raised by the Prosecutor and concluded that they were ultimately about “why the Prosecutor should be allowed to investigate his staff, rather than the principled objection of why the IOM, the ASP or any other body should not”.

Second, and in any event, we argued that in light of the nebulous and uncertain nature of the concept of “independence” (defined by the IOM thus: “Judicial and prosecutorial independence is regarded as the independent performance of judicial or prosecutorial functions”), balancing this value with the (as yet uncertain) role of the ASP could not be done in the abstract. Rather, it requires specific examples of violations (those raised hypothetically by the Prosecutor were not appropriate in our opinion).

In light of this we turned to consider the role of the ASP in the Court’s functioning, which the IOM debate revealed to be contested by (and within) the Court and states, and the possibility of states pushing for an expanded role for this body in the year to come. This, we suggested, might go beyond “administrative” functions and into the domaine reserve of the Court: judicial matters. This includes the possible use of the ASP as a “political counterpoint” to the Security Council by African states who view the Council as not only unrepresentative, but also hostile to African requests for deferrals under article 16. This, we concluded, makes the upcoming debate regarding the Court’s governance one to watch carefully.

The full version of our contribution, as well as those of our colleagues, can be found at the Forum. We would like to thank the Forum (and Professor Richard Steinberg in particular) for the opportunity to participate in this interesting and important discussion.

Thursday, May 5, 2011

Judge Nsereko Lecture: Africa and the ICC

Judge Daniel Nsereko will be coming to the UKZN Faculty of Law next week Tuesday to give a lecture on "Africa and the International Criminal Court". As most readers will know, Judge Nsereko sits in the Appeal Division of the ICC, having been appointed in 2007. We are very proud to be hosting Judge Nsereko and look forward to his remarks on the role of the Court in Africa. If anyone happens to be in this part of the world and would like to attend the lecture please email me. Technology permitting, I will record and podcast the lecture here for those who wish to partcipate in absentia (and  ex post facto).