The Independent Oversight Mechanism: Procedural Questions into the External Investigation of the Prosecutor

[Ezequiel Jimenez is an independent researcher with a PhD in International Law (Middlesex University, United Kingdom) focusing on the history and practice of the Assembly of States Parties to the Rome Statute. All comments and feedback welcome at ezejim@gmail.com, @ezejim7 and @ezejim.bsky.social.]

It is proper and necessary for every organization with a duty of care for its staff, including the International Criminal Court, to have a zero-tolerance policy for harassment or any other prohibited behaviour. A robust policy to that effect needs to be accompanied by an equally impeachable process that enhances accountability for affected staff, due process and effective organizational learning to prevent reoccurrence. Indeed, the Court promulgated in 2022 an authoritative Administrative Instruction to this end. It did so partly responding to the 2020 Independent Expert Review damming findings of ‘many accounts of bullying behaviour amounting to harassment in all Organs of the Court, though particularly in the OTP’. Commissioned by the Assembly of States Parties to the Rome Statute, the report also found critical inadequacies in the Independent Oversight Mechanism (IOM), the subsidiary body of the Assembly in charge of investigating alleged misconduct by elected officials. The experts flagged staff low trust in the IOM to report incidents, deficient resources allocated to it and lack of capability to pursue multiple investigations. 

The history behind the negotiations of Article 112(4) shows the Independent Oversight Mechanism was proposed by the United States as a body of the Assembly to safeguard non-judicial operations of the Court performed in accordance to the Statute and at the highest level of professionalism. To enhance the ‘efficiency and economy’ of the institution meant the establishment of a third-party body able to assure States Parties the Court’s organizational maturity and evolution was in line with the Rome Statute. As such, located in Part 11 of the Statute, the Assembly of States Parties retains absolute governance authority over the IOM. In fact, by virtue of Article 112(3)(c) the Bureau provides governance oversight in the intersessional period, including applying Article 112(2)(b) providing management oversight to the principals of the Court. The battle to operationalize Article 112(4) took the Assembly more than a decade and iterations of the operational mandate behind the Mechanism, notably because then Prosecutor Moreno-Ocampo disagreed with its capability to conduct investigations into OTP staff. Only by 2013, and further strengthened in 2015 and 2020, the Independent Oversight Mechanism became fully functional. This process also included amending the Rules of Procedure and Evidence in order to clarify the receipt and admissibility of complaints, and their reporting to the Assembly and its President. In the early days of the IOM, seconded expertise from the United Nations Office of Internal Oversight was crucial to set-up its investigative function. 

However, and after expanding its ability to investigate former staff members, the annual reports of the Head of the IOM show a difficulty in completing investigations and securing necessary staff resources to achieve its mandate. To remediate institutional difficulties to tackle effectively harassment or any other prohibited behaviour, the Independent Expert Review recommended to the Assembly and the Court a series of actions to institute an internal justice system, including the creation of a Judicial Council. However, even after receiving a positive response by the Court, the Assembly decided in 2023 to discard the changes proposed. Thus, while the Court asserts it ‘will not remain silent or passive in the face of reported incidents, regardless of the offender’, challenges remain at all levels in the Rome Statute system. Yet, given the primal governance role exerted by the Assembly, such deficiencies remain for States Parties to address. It is in this overall context the announcement by the President of the Assembly of States Parties commissioning an external investigation into the Prosecutor for alleged misconduct raises several governance and procedural questions. 

The first allegation of misconduct by the Prosecutor appeared on X on 17 October 2024 by an anonymous account. By 19 October 2024 an online publication emerged in the United Kingdom. Soon after, several other outlets replicated the story. At the time the Daily Mail story appeared, the President of the Assembly of States Parties provided a statement to the publisher referencing her knowledge of the allegations and the receipt of a third-party complaint by the IOM. According to the 2024 report by the Head of the IOM to the Assembly, the allegations were transmitted in May 2024. However, even while discussing related matters to the IOM including the appointment of its new Head, the Bureau did not, at least publicly, take on the troubling reports until 6 November. During this meeting, the President of the Assembly referred to her 24 October press release and the decision by the IOM not to pursue a formal investigation after the affected individual did not confirm or deny the allegations. The same meeting record shows that on 28 October, the Prosecutor requested the IOM open an investigation into the allegations. Bu 24 October, Khan had issued a statement on X signalling his cooperation with the IOM. On 11 November, the President of the Assembly, after consulting the Bureau (21 member States), decided on an external investigation into the allegations against the Prosecutor. 

The statement cited three reasons for the novel decision to remove the IOM from its exclusive investigative role: the ‘particular circumstances’ of the case; ‘perceptions of possible and future conflicts of interest’ and that the ‘IOM has indicated that it has no objection to exceptionally resorting to an external investigation’. It is understandable some elements of this troubling situation are kept confidential and full preservation of privacy remains. However, and in particular, the claims around conflict of interest are serious. Do these relate to the appointment of the new Head of the IOM, an internal candidate previously employed at the OTP, on 2 October? Equally, is it appropriate that Bureau members agreed with the advice of the outgoing Head of the IOM to relay its mandate to an external body without allowing the new IOM leadership a view on the matter? Given the grave reputational risk the situation poses for the International Criminal Court when external political attacks occur almost daily, could the President of the Assembly and the Bureau have consulted its decision at the 23^rd session with the rest of States Parties before proceeding? Furthermore, was the decision to pursue an external investigation by Assembly Presidency within the current legal possibilities under the operational mandate of the IOM?

In the current legal framework (the Rome Statute, the Rules of Procedure and Evidence, related Assembly Resolutions and staff policies) it is for the Independent Oversight Mechanism to exclusively investigate any wrongdoing by elected officials and transmit its findings to the Assembly President. Related Administrative Instructions make clear the framework to investigate elected officials misconduct is the IOM. In that framework, questions emerge about the possibility to externalize the responsibility of the IOM to conduct the investigation into the Prosecutor. The only mention of ‘an independent third-party procedure’ in the IOM operational mandate is under the ‘oversight’ rather than ‘investigation’ heading. As such, an external procedure might be called on if the IOM’s oversight activities might ‘affect judicial or prosecutorial independence, or affect ongoing Court proceedings or investigations’. Nothing in crucial paragraph 6 mentions its application to investigating alleged misconduct of elected officials, which is properly covered in paragraphs 8-18 under the ‘investigation’ title. Thus, a question remains whether the Assembly Presidency and Bureau applied the correct and current legal standard when agreeing with the advice of the IOM Head to externalize the investigation into the Prosecutor. From the public record available to this author, no legal or authoritative reasoning has been given by the Assembly leadership or the IOM. In the event another legal reasoning has been claimed to externalize the investigation, it has not been referenced in the public domain yet.

Besides this reading of the current legal mandate of the IOM, it is also possible to question why the delay by the leadership of the Assembly in reforming the IOM to clear any possible legal doubt. The author completely agrees with the victim-centred approach publicly taken and the necessity to pursue an un?impeachable process to provide accountability for those affected. This would not be the first time the Court faces accusations against its elected officials. Thus, given the knowledge of the situation since May, the Bureau could have fast-tracked changes to the operational mandate of the IOM nested in Resolution 6 from the 19^th session of the Assembly. Nothing would have impeded a Bureau member State to table a modification in the investigative power of the Mechanism to add a third-party option. Doing so would have cleared any doubt and strengthened the governance oversight of the Assembly over the subsidiary body. Another avenue, albeit more complicated, would have been to amend Section IV of the Rules of Procedure and Evidence by invoking Rome Statute Article 51 (including by the Prosecutor) and even Articles 46 and 47 via the amendment procedure for institutional changes under Article 122. 

At the time of writing, it is being reported the United Nations Office of Internal Oversight will conduct the external investigation into the Prosecutor. The International Federation for Human Rights and Women’s Initiatives for Gender Justice have called on a careful vetting of the United Nations Office of Internal Oversight to avoid any concern of conflict of interest given Khan’s wife past employment at the office. It would be important to enhance organizational learning that the Bureau indicates the process and criteria in selecting the United Nations Office of Internal Oversight, exactly to avoid a perceived conflict of interest. In addition, the Assembly of States Parties should call for a review of this process when concluded in order to strengthen the IOM’s operational mandate in line with questions explored here and elsewhere. In conclusion, the Assembly has an inherent duty to thoroughly investigate these allegations at the same time it must carefully explain how the procedural avenue pursued does not impair the IOM’s legal standing and processes in the future. At a time the Court is facing increasingly vicious political attacks for pursuing its mandate under the Rome Statute, the Assembly must also step-up its governance responsibilities to protect the institution from external and internal challenges.