Final Report of an Independent Expert Review as a Form of Supervision over the International Criminal Court's Activities / «Заключительный отчет независимой экспертизы» как форма надзора за деятельностью Международного уголовного суда

Смирнов Виктор Вячеславович аспирант, кафедра конституционного и международного права, Университет управления "ТИСБИ" 420012, Россия, республика Татарстан, г. Казань, ул. Муштари, 13 Smirnov Viktor Vyacheslavovich Postgraduate student, Department of Constitutional and International Law, University of Management "TISBI" 420012, Russia, respublika Tatarstan, g. Kazan', ul. Mushtari, 13 05540@mail.ru Другие публикации этого автора

Introduction

The International Criminal Court is endowed with broad powers to perform the functions assigned to it, including ensuring international peace and security ^{[10, p. 71]} and investigating international conflicts ^{[1, p. 34]}.

The scientific literature notes several problems that arise when analyzing the activities of the ICC, for example, issues related to the jurisdiction of the ICC ^{[4, p. 293]}, with the predominance of case law ^{[8, p. 206]}, the investigation of crimes in Africa ^{[6, p. 16]}. In this regard, taking into account the globalization of international justice ^{[2, p. 77]}, the issue of supervising the activities of the ICC is important.

The subject of this study is an overview of the "Final Report of an Independent Expert Examination" as a form of supervising the activities of the International Criminal Court (hereinafter the ICC).

In the course of the study, the method of system analysis is used, which makes it possible to analyze the provisions of the report under consideration in relation to the ICC's activities. General scientific research methods are also applied: the dialectical method, deductive method, and comparative method, in which the general provisions of the report under consideration were analyzed first, and then a comparison with other international organizations was carried out.

The theoretical basis of the study was the works of the following domestic scientists, specialists in the field of international law and justice: A. H. Abashidze, A. I. Abdullina, E. R. Adamova, I. L. Akhamova, Z. G. Aliyev, K. F. Amirov, R. R. Amirova, I. O. Antonov, K. M. Arslanova, L. V. Bakulina, L. T. Bakulina, S. V. Bukhmina, R. M. Valeeva, V. V. Gavrilova, Z. I. Gadelshina, I. G. Garanina, R. S. Garipova, S. I. Glushkova, D. N. Gorshunova, T. I. Huseynova, R. A. Kalamkaryana, P. A. Kalinichenko, S. Yu. Kashkina, M. I. Kleandrova, E. A. Kopylova, N. I. Kostenko, L. A. Lazutina, M. A. Likhacheva, A. B. Mezyaeva, L. H. Mingazova, E. Yu. Motrokhina, T. N. Neshataeva, D. E. Svistunova, V. L. Tolstykh, P. V. Troshchinsky, G. R. Shaykhutdinova, and others.

The scientific novelty of this work is as follows: system proposals that can improve the activities of the ICC, as well as the work of the entire system of international criminal courts and tribunals, are considered and analyzed.

The Final Report of the Independent Examination. The Assembly of States Parties to the Statute of the International Criminal Court (hereinafter, the ICC Assembly) is the body that monitors and supervises the ICC's activities.

The Assembly shall consist of one representative from a State Party, who may be accompanied by alternates and advisers. Representatives from other States that have signed but not yet ratified the Rome Statute or the Final Act of the Rome Conference may also participate in the Assembly as observers without the right to vote.

In accordance with Article 112 of the Rome Statute of the ICC, the Assembly exercises managerial oversight of the Presidium, the Prosecutor, and the Registrar in relation to the management of the Court, adopts Rules of Procedures and Evidence and Elements of the Crime. According to paragraph 4 of Article 112 of the ICC's Rome Statute, the Assembly is authorized to establish subsidiary bodies to oversee the ICC's activities, including conducting inspections, evaluating the work of the ICC, conducting investigations of the ICC's activities to improve the efficiency of the court and the economy of its activities.

In December 2019, the ICC Assembly established an independent expert group whose main tasks were to develop a system of recommendations that would strengthen and improve the ICC's activities and the Rome Statute system, for which experts were instructed to give concrete, achievable, and practical recommendations.

The work was divided into three areas: the first, "management," the second, "judicial authority," and the third, "preliminary investigations, investigations, and prosecution." The group consisted of nine experts (three for each direction) from the following countries: France, Argentina, Australia, Poland, Great Britain, Tanzania, South Africa, Gambia and Brazil. Richard Joseph Goldstone from South Africa was elected Chairman at the first plenary session.^[1]

Nine experts working in three areas coordinated their activities, consulted with each other, and met with current and former ICC officials, judicial officials, representatives of the Assembly of States Parties, and scientists. They were granted unhindered access to ICC staff and confidential documents, subject to compliance with regulatory requirements and confidentiality agreements. Reports on each direction were prepared by July 31, 2020, and the Final Report on September 30, 2020.

As part of the work carried out, the experts compared the ICC with other international judicial institutions, international organizations, and national and international courts, which made it possible to summarize the accumulated experience and identify problems in the functioning of the ICC. The report contains 384 recommendations, both short-term and long-term, of varying degrees of complexity and urgency of implementation. Each section consists of two parts: the first contains expert conclusions, and the second their suggestions. The annexure to the report includes recommendations that experts considered of the highest priority and urgent.

It is possible to highlight the main problems noted by experts in the report. Firstly, it is the imperfection of the ICC management model, taking into account the dual status of the ICC (an international organization and an international judicial body). Secondly, it is issues related to conflicts of interest, and thirdly, it is not an effective reporting system for the ICC. All these problems, according to experts, require detailed study, for which numerous recommendations were given.

No. 1. Recommendation on improving the ICC management model. The first such recommendation relates to the ICC governance model.

Since the ICC is essentially both an international organization and a judicial institution, the key issue is its independence as a judicial body while preserving the ability of the participating States to continue to form and influence the existing institution, which can generate contradictions.

Scientists note that the structure of the ICC is characterized by the dual nature of the institution: The ICC is both a judicial body and an international organization. On the one hand, as a judicial body, the ICC should enjoy judicial independence, and judges should have complete impartiality ^{[5, p. 258]}; on the other hand, being an international organization, the participating States reasonably expect to report on activities, including without political interference ^{[7, p.47]}. The independence and impartiality of judicial bodies are applied mutatis mutandis to both national and international judges ^{[9, p. 194]}, respectively, the possibility of influence of participating States and other persons to influence judicial bodies and prosecutor's offices, including through informational influence, should be excluded ^{[3, p. 302]}.

As an international organization, the ICC should not carry out judicial activities; it should perform administrative functions, such as personnel management, budget, finance, procurement, real estate management, etc. Experts believe that the ICC, in this capacity, should function as a single organization with a vertical hierarchical structure in which the participating States play a key role, including electing its officials, financing its expenses, as well as monitoring and supervising its functioning.

As a judicial institution, the ICC should have absolute independence in matters of justice. Experts believe that judges and prosecutors should be able to carry out their activities without any outside interference, and participating States should not use their status to influence judicial and prosecutorial bodies, whether through financial and budgetary decisions or appointments to positions.

The distinction between the ICC as a judicial institution and the ICC as an international organization in terms of authority and accountability is also consistent with the provisions of Article 119 of the ICC's Rome Statute. It clarifies that the Court has the authority to resolve any disputes concerning its judicial functions and that any other disputes related to the interpretation or application of the Rome Statute are referred to the ICC Assembly for consideration.

The accountability of judicial and prosecutorial activities should be ensured through judicial remedies provided by the ICC legal framework.

However, the administration of justice, according to the expert group, does not require an unconditional degree of independence. It is assumed that confidentiality and independence should not be used as a way to evade responsibility and prevent surveillance. The administration of justice is checked in national systems—the same should be the case in the international system, including with regard to the ICC. The effectiveness of the administration of justice can be monitored using performance indicators. Within the framework of the ICC as a judicial body, the participation of state parties should be limited to the legislative function and judicial cooperation.

Summing up the above, experts call their main recommendation in the section "governance" a "three-level governance model," which is proposed to be established in the ICC in accordance with the provisions of the Rome Statute: level 1, judicial and investigative activities; level 2, administration of justice; level 3, management of an international organization. Each level will have an appropriate structure and require varying degrees of independence and accountability.

So, at level 1, judicial and investigative activities will be in the hands of the Presidium, judges, and the prosecutor. The participating States, the ICC Assembly, or external actors will not be able to audit (i.e., conduct an independent audit and evaluate reporting) judicial activities and prosecutorial work. Despite this, it is noted that a certain form of accountability should still exist. Verification of the activities of judges and prosecutors should be carried out to be able to evaluate their work objectively. In this regard, establishing a Judicial Audit Committee consisting of external judges and prosecutors is recommended. They should be involved in conducting inspections of the activities of the Chambers and the Prosecutor's Office in the administration of justice, as necessary. Inter-judicial comparisons of performance indicators on the administration of justice can also further contribute to assessing effectiveness.

Thus, this three-level model should be used as a tool to ensure effective and efficient management, clarify reporting lines, and improve cooperation between stakeholders. Within the framework of this model, it is envisaged to create a judicial audit committee to monitor and supervise the administration of justice.

No. 2. Recommendation on the prevention of conflict of interests. The section dealing with preventing and detecting conflicts of interest also proposes to strengthen control and supervision by expanding the circle of persons who need to submit annual financial disclosure reports, declarations of interest, and reports on transactions with third parties.

Currently, the ICC uses three main tools to prevent conflicts of interest: the first is the financial information reporting program, the second is the guidelines for the extrajudicial activities of judges, and the third is the possibility of recusal of judges.

The ICC Financial Information Program, implemented by the UN Ethics Office, applies to the ICC President, Prosecutor, Deputy Prosecutor, Registrar, Deputy Registrar, all staff at the D-1 level and above, as well as some staff involved in the procurement of goods and services or investment of ICC assets. These persons must submit annual financial disclosure reports, declarations of interest, and reports on transactions with third parties.

The experts concluded that the purpose of the ICC Financial Information Program is to prevent and identify financial conflicts of interest. Experts believe that the Court should expand this program. First, the ICC's Financial Information Program should be extended to a larger number of individuals, starting with judges, as their participation in this program is currently voluntary. Secondly, the program should be supplemented with an expanded declaration of interests, following the model used in the European Union, to be used as an additional risk identification tool. The declaration should cover the activities of the accountable person for the previous three to five years in the following areas: previous professional activities, including consulting activities; participation of the accountable person in any councils, committees, or supervisory bodies of any organization; voluntary cooperation with any organizations; membership or participation in any associations, political parties, trade unions, public organizations, or foundations; teaching or research work; current professional activity; any other additional issues that are important in the context under consideration.

The second tool for preventing conflicts of interest is the guidelines for the extra-judicial activity of judges. They are provided for in Article 10 of the ICC Code of Judicial Ethics. In a broad sense, they cover actions that are carried out in private time and are of a private nature, as well as events of a private nature but carried out at official time. Experts believe that it is necessary to further improve the basic principles in the regulation of extrajudicial activities, including the resolution of ethical issues that may affect the independence and impartiality of judges or interfere with the performance of their duties. General principles of a mandatory nature should be taken into account, for example, the obligation that extra-judicial activities are fully compatible with the principles of independence and impartiality of judges, the requirement that judges devote their official working hours to their main judicial functions, principles governing remuneration or fees received by judges in the course of extra-judicial activities carried out during the official working day time. As a result of the research conducted by experts, it was revealed that in practice, contradictory requirements can be observed when some participating States want judges to devote all their time to the work of the Court, and other participating States invite judges to participate in awareness-raising events or conferences that they organize.

The proposed changes to the guidelines for the extrajudicial activity of judges are aimed at minimizing potential risks of conflict of interest, will increase transparency, and ensure consistency and stability in their application, regardless of the change in leadership of the ICC.

The third tool for preventing conflicts of interest is the possibility of recusal of judges. In accordance with articles 41–42 of the ICC Statute and articles 34–35 of the Rules of Procedure and Evidence, judges, the prosecutor, and the deputy prosecutor in certain situations are obliged to refuse to participate in the case. In addition, the parties can seek the recusal of the judge, the prosecutor, and the deputy prosecutor. However, challenges occur at too late a stage of the ICC process, which leads to delays in the trial and, regardless of their outcome, can significantly affect the reputation of the Court. The additional statement of interest required from judges, participation in the ICC's financial information program, and the opportunity to participate in discussions with a specialized body will help identify potential conflicts of interest at an early stage.

To implement these additional measures aimed at preventing conflicts of interest, the experts recommend the creation of a new body, the Ethics Committee, which will perform a preventive and advisory role for the Court, performing the following functions: consulting with judges and senior staff when they take office (with an emphasis on identifying and considering potential conflicts of interest); drafting instructions on relevant topics related to ethical issues, the interaction between court officials and participating States, based on international and national best practices; giving advisory opinions to heads of courts and persons working with the court on issues related to ethics; making decisions in case of disagreement between an Independent Oversight Mechanism and managers (for example, when there are different opinions as to whether confidentiality and independence in a particular case would be an obstacle to oversight by an Independent Mechanism).

It is assumed that the ethics committee will be an independent body with competence at the level of the entire Court. It will not be created on a permanent basis but rather will operate as needed, and its members will work remotely. It will consist of three current and former national and international judges from Member States of the Assembly of States Parties with relevant knowledge and experience in ethics issues.

In the long term, experts recommend setting up a joint ethics committee serving several international courts and tribunals to ensure consistency of standards and rationalization of costs. To this end, the authority to establish an Ethics Committee should allow its members to perform similar functions in other international judicial organizations. The relationships and links between all internal and external oversight bodies should be clearly stated (for example, what information should be provided to which body) to enhance cooperation and prevent duplication.

Thus, in the section dealing with the prevention of conflicts of interest, the experts gave recommendations on improving the existing tools for conflict prevention in the work of the ICC.

No. 3. Recommendation to improve ICC reporting. The following important recommendations of experts in the field of supervision and control over the activities of the ICC can be identified as recommendations related to reporting to the ICC based on qualitative and quantitative indicators that would allow all interested parties to evaluate the work of the ICC.

Performance indicators of judicial institutions exist in many national judicial systems and international organizations. The International Criminal Court also needs to evaluate its activities to ensure transparency and accountability for both participating States and the entire international community.

To measure the effectiveness of the ICC, the data obtained are compared with data from other courts or international organizations, including for different time periods. This requires consistency in data collection and presentation over time so that such comparisons can be made, as well as the standardization of relevant data collected between international judicial institutions to enable comparisons between courts.

Such an approach would make it possible to compare and define "normality" in international justice, i.e., recognized standards of what can be expected from the International Court of Justice. This methodology is similar to that carried out at the national level. It could also reduce tensions during budget formation, as budget applications could be evaluated from a more objective point of view.

To ensure constructive work, as well as respect for the independence of judges, it is important that performance reports are not used to evaluate judicial or prosecutorial decisions, but performance indicators should measure data related to the administration of justice (for example, the number of hours of meetings, the time spent on making specific decisions, the accuracy of expected deadlines).

To assess the effectiveness of the Court, it is necessary to compile a report in which raw data based on quantitative indicators will be presented. The data should be presented sequentially in a form convenient for the reader. The document should be available to the supervisory authorities and the participating States. Data collection and presentation should be standardized so that data over several years can be compared. To compare with other international organizations, including other international courts and tribunals, the Registrar should engage in dialogue with various such institutions and agree on the indicators that can be monitored and exchanged.

Conclusions. It should be noted that the ICC has listened to the recommendations related to reporting on the court's performance indicators.

For example, in articles 6 and 7 of the Report on the ICC's Key Performance Indicators for 2021, it is reflected that "at the meeting of the Management Research Group held on October 20, 2021, recommendation No. 146 of the Final Report of the Independent Examination of the International Criminal Court and the Rome Statute was positively evaluated. The Court made several proposals to implement this recommendation to improve the collection, standardization, and presentation of key performance indicators."

The Assembly of States Parties to the Statute of the International Criminal Court uses the possibilities of the control and supervisory mechanisms established in Article 112 of the Rome Statute of the ICC. The final report of September 30, 2020, prepared by a group of international experts and containing 384 recommendations to improve the functioning of the ICC, is an example of the use of such a mechanism. The ICC Report on Key Performance Indicators for 2021 notes that "at the meeting of the ICC Management Research Group held on October 20, 2021, recommendation No. 146 was evaluated positively, the court made several proposals to implement this recommendation to improve the collection, standardization, and presentation of key performance indicators." This allows us to conclude that the ICC listens to these recommendations and reports to the community about which recommendations were considered and implemented.

The Final Report under consideration, dated September 30, 2020, prepared by a group of international experts, contains several recommendations for improving supervision and control over the activities of international judicial institutions, using the example of the ICC, of which the following can be distinguished.

The introduction of a three-tier management model in the ICC will allow for a clearer delineation of the ICC's work in terms of the differences between the ICC as a judicial institution and as an international organization for the possibility of regulating the activities of the court by participating States, but taking into account the preservation of the principle of judicial independence.

The establishment of a judicial audit committee, formed from external judges and prosecutors, to conduct inspections of the administration of Justice of Chambers and the Prosecutor's Office as necessary.

Expanding the circle of persons, starting with judges, who need to submit annual financial disclosure reports, declarations of interest, and reports on transactions with third parties to prevent and detect conflicts of interest at an early stage.

Improving the principles in the regulation of non-judicial activities, including the resolution of ethical issues that may affect the independence and impartiality of judges, will increase transparency and ensure consistency and stability in their application.

The creation of a new independent body—the ethics committee, which will perform a preventive and advisory role for the Court and allow for the resolution of conflicts of interest and carrying out other work in this direction.

Development and improvement of reporting on the main performance indicators in the ICC's work, which will allow for comparison with other international organizations, including other international courts and tribunals, to further improve the effectiveness of the ICC.

Over the past decade, significant efforts have been made at both the national and international levels to increase the transparency and accountability of international judicial institutions. The Final Report of September 30, 2020, prepared by a group of international experts, plays a vital role in improving the international criminal justice system, and implementing its recommendations will help improve the activities of the ICC.

^[1] Previously had experience as Chief Prosecutor at the International Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda, judge of the Constitutional Court of South Africa, and Chairman of the UN International Commission of Inquiry into the facts of the war in the Gaza Strip.