In December 2019, the Assembly of States Parties to the International Criminal Court (ICC) established a comprehensive ICC review process and invited various stakeholders to make submissions on issues under the mandate of the review. This blog is part of a series highlighting recommendations the Open Society Justice Initiative is making to the Group of Independent Experts, Assembly of States Parties, and ICC as the review process continues throughout 2020 and beyond.

The International Criminal Court (ICC) review raises the critical question of whether changes to the court’s operations require amendment of the Rules of Procedure and Evidence, or even the Rome Statute. The ICC Assembly of States Parties (ASP) created a “matrix” in 2019 to set out issues for review, and the document contemplates amendments as a possible way to advance reform at the court. In the document, States Parties identified the election of ICC officials, including the election of the Registrar, as one issue ripe for review.

The Open Society Justice Initiative views the election of the Registrar (and, if applicable, Deputy Registrar) as linked to a broader issue: the role of judges in the administration of the court. Judges at the ICC play a much larger role in court administration than do judges at other international courts and tribunals. But should they? Eighteen years after the Rome Statute took effect, states should ensure that the review process considers alternatives to what has proved to be a problematic arrangement.

Background

Under Article 38 of the Rome Statute, the ICC Presidency is responsible, inter alia, for “[t]he proper administration of the Court, with the exception of the Office of the Prosecutor.” Article 43 states that “[t]he Registrar shall exercise his or her functions under the authority of the President of the Court” and that the judges elect the Registrar and Deputy Registrar.

This arrangement differs from practice at other international courts and tribunals dealing with grave crimes. For instance, the UN Secretary General (UNSG) appointed the Registrars of the International Criminal Tribunals for the former Yugoslavia and Rwanda, and the Special Court for Sierra Leone (SCSL).  The UNSG also appoints the Registrar at the Special Tribunal for Lebanon. At the UN-backed Extraordinary Chambers in the Courts of Cambodia, the Director of the Office of Administration (a Registry equivalent) is named by the Cambodian government, with the international Deputy Director named by the UN Secretary General.

The United Nations Office of Legal Affairs (OLA) developed guidance for the SCSL on the proper positioning of the Registrar vis-à-vis the President. It drew a distinction between pure administrative aspects of the Registrar’s role, which are best guided by the link to the UN, and judicial support and supervision aspects of the role, for which the Registrar should be answerable to the SCSL Presidency.

Beyond UN-associated courts, judges have been kept at arm’s length from non-judicial administrative matters. At the Kosovo Specialist Chambers, the head of the EU mission in Kosovo (EULEX) appoints the Registrar. At the Extraordinary African Chambers, which conducted the prosecution of Hissène Habre, Senegal’s Minister of Justice appointed the Registrar.  

Conflicts of Interest and Inefficiencies

First, it is not apparent that judges are best suited to oversee the functioning of a court’s administration, which involves such disparate matters as human resources, procurement, security, and finance. States do not elect judges on the basis of their administrative experience and expertise. Given that it is not something usually required in the domestic jurisdictions that many of them come from, most judges come to the court lacking any such background beyond the small-scale administration of their immediate chambers.

Second, there is reason to believe that the Rome Statute’s innovation of placing court administration (apart from the OTP) under the court’s judges has created conflicts of interest and inefficiencies. Because the judges elect the Registrar and Deputy Registrar, the current system incentivizes candidates for these positions to make campaign promises to judges regarding Registry services that unduly favor Chambers or individual judges over other officers or sections of the court. The selection process for Registrar and Deputy Registrar should not invite judges to place the promise of perks over merit.

Likewise, once in office, a Registrar beholden to judges via the Presidency retains a strong incentive to cater to the demands of individual judges or groups of judges even if unreasonable and at odds with an efficient use of court resources. Conversations with current and former staff members reveal various dubious or unethical requests from judges to the Registrar over the years. These have included the creation of an expensive and rarely used “judges’ lounge” that took over scarce office space in the former premises; pressure to hire a judge’s family member to a Registry position; and excessive requests regarding ICC vehicles and offices. While these types of incidents call into question some judges’ ethical behavior, they are facilitated by the administrative arrangements in place.

A further concern is that the current ICC Coordination Council makes it possible for the President (a judge) and the Prosecutor to overrule the Registrar on administrative matters. If the Registrar is the person with greatest administrative expertise and experience, should this be possible?

What is the Alternative?

The Justice Initiative made a submission on this matter to the IER, in which it outlined a possible alternative arrangement. Such change would require an amendment of the Rome Statute. In this scenario:

1. The judges would no longer elect the Registrar. Rather, an independent expert nominating committee (“Registrar nominating committee”) with equitable gender and regional representation would identify the strongest candidate, and submit that candidate to the ASP for a confirmation vote.
2. If there is need for a Deputy Registrar, the Registrar would put forward three names to the Registrar nominating committee, which would then submit the name of the most suitable candidate to the ASP for a confirmation vote.
3. The Registrar would serve for a single, non-renewable term of 7-9 years and the Deputy Registrar (if there is one) would serve until the end of the Registrar’s mandate. This arrangement would remove the incentive to favor anyone in hopes of reelection.
4. The Registrar would report to the ICC Presidency solely on matters of judicial support and supervision. For all other matters, the Registrar would report to a subsidiary body of the ASP. The ASP Bureau’s working groups would explore which existing subsidiary body would be most suitable for this oversight role, or whether a new specific subsidiary body should be created.

There may be better solutions. The Justice Initiative hopes its IER submission encourages serious consideration of arrangements to keep judges focused on judicial matters and improve ICC administration.