Related Post: ICC Investigation: Scandal and Implications for International Justice – II
- Introduction: A disreputable event
- A general idea of International Justice´s organs and organisations
- Looking at the International Criminal Court Structure
- A decision issued by the International Criminal Court
- Two Discrete Presidencies
- Conclusion: CC Investigation: Scandal and Implications for International Justice – II
Introduction: A disreputable event
On the historical agenda of International Justice, 8 November 2024 is a day to be remembered as the day a legal act was carried out given an unprecedented and scandalous event, which drew the attention of professors, students, lawyers, judges, practitioners, and all those enthusiastic about International Justice.
Now, consider the three iconic standing global international judicial bodies:
- International Court of Justice (ICJ),
- International Tribunal for the Law of the Sea (ITLOS) and
- International Criminal Court (ICC).
Then, guess which one is involved with that event. A tip: It is the most mediatic Court.
That shameful event is about the International Criminal Court (ICC).
Indeed, “the International Criminal Court has announced an external investigation into accusations of sexual misconduct against its chief prosecutor”, Mr Karim A. A. Khan (British lawyer), who denies the allegations.
After having consulted the Bureau of the Assembly of States Parties (ASP), the President of the Assembly, H.E. Ms Päivi Kaukoranta (Finland), stated that:
I am seeking on behalf of the ASP Presidency an external investigation into the matters related to alleged misconduct by the ICC Prosecutor. The involved parties have been informed.
Considering the incident involving the Chief Prosecutor and the following statement from the President of the Assembly of States Parties, examining the International Criminal Court’s founding treaty and structure could be enlightening.
It is essential to understand the distinctions and connections between the administrative and judicial instances within the framework of the International Criminal Court. This notably contentious contemporary international entity has played a significant role in the current conflicts in the Middle East and Eastern Europe.
At the end of the posts, you will learn that the International Criminal Court is an intergovernmental organisation whose institutional purpose is the prosecution and judgment of individual perpetrators of serious crimes of concern to the international community, following its constitutive instrument – 1998 Statute of Rome), through the legal framework constituted of independent functional organs (the Court, the Office of the Prosecutor and the Office of Public Counsel for the Defence, assisted by the Registry), tasked with the organisation´s institutional ends, and the political, administrative, disciplinary and financial governance of a directive body, the Assembly of States Parties.
A general idea of International Justice´s organs and organisations
One of the most common mistakes people make when learning about International Justice, which is a branch of International Law, is to compare their well-known ideas on the domestic judicial structure with the discrete legal reality of International Justice´s organs and organisations.
Thus, there are two points to bear in mind.
First, the organs and organisations tasked with international jurisdiction are not provided with sovereign power, although their decisions can be binding, enforced and executed (there are exceptions, though).
Second, the organs and organisations assigned international jurisdiction do not have the same structure as the organs of the domestic judiciary systems of the States. Moreover, there is no hierarchically instituted global international justice structure, as the supra State adjudicatory bodies and institutions fulfil their jurisdictional duties in a self-contented fashion.
The domestic judicial structure is a constitutional part of the State integrating its unique lex lata legal system, and every judicial entity is always an organ or unit of the state’s judiciary organisation.
Conversely, international judicial entities may be either a stand-alone organ, not belonging to any sheltering structure (v.g., the State-State ad hoc arbitrations), or be a part or organ of an organisation, for instance, the International Court of Justice is an organ of the United Nations, which is a complex and far-reaching global intergovernmental organisation. However, as a single entity or part of an encompassing organisation, the international judicial entities are neither integrated with others nor endowed with sovereign powers. Large international judicial organisations, as much as minor stand-alone judicial entities (such as ad hoc arbitrations), exert their jurisdictional powers with the same insulation.
Looking at the International Criminal Court Structure
The International Criminal Court is classified as an intergovernmental organisation constituted to pursue international criminal jurisdiction over individuals having committed serious crimes envisaged in the Statute of Rome in pursuance to Article 5.
The Criminal Court and (the Prosecutor’s Office) are not stand-alone organs but rather, functional organs of that intergovernmental structure and, consequently, despite their institutional independence, both of them are equally subjected to the governing political, administrative and financial directive of the supreme organ, in case, Assembly of States Parties.
Notice that the International Criminal Court, the ICC, is, therefore, juridically ambiguous as it designates two distinct entities at the same time: the judicial organ that carries out the institutional scope of the 1998 Rome Statute (the Court) and the whole organisational institution embodying not only the former but also the latter´s governing body, the Assembly of States Parties (ASP).
A decision issued by the International Criminal Court
So, when hearing of or reading about a decision from the International Criminal Court, it is necessary to know which decision it is to learn the deciding source.
There are decisions from the International Criminal Court in a broad sense (referring to the organization) and also from the International Criminal Court in a narrow view or sensu stricto, meaning the tribunal itself or the bench with its judges. The former issues governing decisions on political, administrative, economic and disciplinary matters, whereas the latter hands judicial orders.
Two Discrete Presidencies
The organization of the International Criminal Court, then, comprises two collective bodies with different presidents.
The Presidency’s decision to delegate the investigation of the Chief Prosecutor’s alleged misconduct to an external entity falls under the administrative purview of the Assembly of States.
President of the Assembly of the States Parties, Ambassador Päivi Kaukoranta and President of the Court, Tomoko Akane.
Then, returning to that bad news on Mr Karim, the Chief Prosecutor, the decision was handed down by the intergovernmental institution, not the Court itself. Consequently, it was not a jurisdictional decision but an administrative-nature decision issued legally by the governing body (Presidency of the Assembly of the States Parties) of the intergovernmental institution encompassing the Office of the Prosecutor, a functional organ of the institution as well, besides the Court.
Therefore, should Mr. Karim decide to contest that decision, he would not be adhering to the tribunal’s procedural rules, such as appealing to a higher jurisdictional body. How, then, could the Prosecutor defend his interests? For example, by ensuring that the investigation is conducted through the Independent Oversight Mechanism (IOM) rather than being assigned to an external entity? Quid iuris?
