Some problems related to the supervision of the activities of the International Criminal Court

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 Other publications by this author

The modern system of international law is in constant change - 2023 was marked, among other things, by the fact that the activities of the International Criminal Court (hereinafter the ICC) cause reputational damage to the Russian Federation: ICC Prosecutor Karim Ahmad Khan sent a petition to the Pre-Trial Chamber II of the International Criminal Court to obtain an arrest warrant for the head of State and the Commissioner for Children's Rights. ICC judges Tomoko Akane, Rosario Salvatore Aitaly and Sergio Gerardo Ugalde Godinez issued an arrest warrant for the above-mentioned citizens. The grounds for issuing an arrest warrant were "reasonable grounds to believe that the above-mentioned persons may be responsible for a war crime" – the possible illegal deportation of children from the territory of another State (at the same time, attention should be paid to the fact that arrest is a certain "interim measure" that can be taken out without presenting any evidence).[i]

Despite the fact that restrictive measures are imposed on only two individuals, the reputational damage to the entire state is tangible, since 123 countries have adopted the ICC Statute to date and theoretically, the ICC prosecutor's orders for such countries are legally binding. In this regard, the adoption of a law is being discussed in the Republic of South Africa, which will allow the state to independently decide whether to arrest in the country on ICC warrants or not.

Russia is not a party to the ICC Statute, accordingly, the jurisdiction of the ICC should not apply to our country, but we see the opposite situation in which an international organization (and the ICC is not only a judicial institution, but also an international organization) causes reputational damage by its decision alone.

Thus, in this article, the author draws attention to some problems related to the supervision of the activities of the ICC: firstly, there is currently no universal mechanism that would allow our country to exercise full control and supervision of the activities of the ICC, and secondly, the author agrees with the opinion of scientists ^{[4, p. 24]} that it is necessary to increase the quantity and quality of scientific research that would address such issues. As V.L. Tolstykh notes, some of the issues that are undoubtedly important at the present time are on the periphery of scientific research, including those related to responsibility, the regime of the use of force and others, and such gaps in research negatively affect the effectiveness of protecting national interests ^{[13, p. 73]}.

Despite the current relevance of the topic under consideration, the degree of study of the above problems is not sufficiently disclosed. This is largely due to the fact that international judicial institutions are in constant development and some of the issues under consideration have arisen not so long ago (for example, the ICC began its activities only in 2002). First of all, the theoretical basis of this study was the works of domestic scientists – experts in the field of international law, who to one degree or another considered in their works the problems of supervision of the activities of international judicial institutions: A.H.Abashidze, A.I. Abdullina, P.N. Biryukova, I.P. Blishchenko, G.I. Bogusha, S.V. Glotov, A.N. Vylegzhanina, A.Ya. Kapustina, A.A., N.I. Kostenko, G.I. Kurdyukova, L.A. Lazutina, V.N. Likhacheva, L.H. Mingazova, A.B. Mezyaeva, E.Yu.Motrokhina, V.L. Tolstykh, G.R. Shaykhutdinova and others.

As the author noted earlier, at present the Russian Federation does not have a universal mechanism that would allow it to properly monitor and supervise the activities of international justice bodies (primarily the ICC), but there are certain ways in which the Russian Federation conveys its position regarding the activities of the ICC.

For example, Russia speaks and communicates its position on the work of the ICC within the framework of meetings of the UN Security Council. In particular, the Russian Federation is increasingly making critical remarks about the work of the ICC. For example, on May 11, 2023, the report of the ICC Prosecutor was considered, during the discussion of which the representative from Russia, Ms. Zabolotskaya, pointed out that "the so-called prosecutor of the so-called International Criminal Court once again provided empty documents under the guise of investigation reports." She also noted that "the ICC is a deeply politicized institution serving the interests of the collective West, which has nothing to do with the administration of justice"[ii].

In addition, we can draw attention to the fact that the Russian Federation has begun to apply mechanisms that could be defined as mechanisms of national control over the work of international justice bodies. For example, the Investigative Committee of the Russian Federation filed charges in absentia against the prosecutor and judges of the International Criminal Court who issued an arrest warrant for the President of the country. The charges were brought against ICC Prosecutor Karim Khan and Judge Rosario Salvatore Aitala. The criminal case is connected with the issuance of an arrest warrant for the President of Russia and the Children's Ombudsman of the Russian Federation. The Investigative Committee indicated that their criminal prosecution "is obviously illegal." The prosecutor and the judge were accused of preparing to attack a representative of a foreign state. The prosecutor was also accused of bringing a knowingly innocent person to criminal responsibility, and the judge was accused of knowingly illegal detention. Karim Khan's actions are qualified by the RF IC under Part 2 of Article 299, Part 1 of Article 30, Part 2 of Article 360 of the Criminal Code, and the actions of Rosario Salvatore Aytale are part 2 of Article 301, Part 1 of Article 30, part 2 of Article 360 of the Criminal Code. The persons are wanted. The investigation into two more ICC judges is ongoing. [iii]

Also in April 2023, the Federation Council approved a draft law on criminal liability for assistance in the execution of decisions of international organizations in which Russia does not participate (we are also talking about the above-mentioned arrest). [iv]

The President of the Assembly of States Parties to the Rome Statute said he was deeply concerned about reports of measures taken by the authorities of the Russian Federation against the Prosecutor and judges of the International Criminal Court, he regretted "these acts of intimidation and unacceptable attempts to undermine the mandate of the ICC."

In addition, questions regarding the activities of the ICC and other international institutions ^{[1, p. 182]} have arisen before ^{[6, p. 258]}. Professor Mezyaev A.B. noted that international courts and tribunals in their activities introduce "new norms" of international law that contradict generally recognized norms, and sometimes the Statutes of these institutions ^{[8, p.100]}, for example, the International Tribunal for the Former Yugoslavia changed the procedural rules for the Tribunal itself ^{[9, p.50]}. It was noted among experts that the International Tribunal for the Former Yugoslavia was a politicized body ^{[12, p. 127]} representing the interests of a certain group of States ^{[16, p. 15]}, since it persecuted representatives of only one of the parties to the conflict ^{[14, p. 140]}.

Scientists have noted that there are certain issues in the work of the ICC ^{[10, p. 14]} related to the election of the African region for investigations ^{[3, p. 283]}. At the same time, when proposals were just beginning to be made about the possibility of the ICC to begin investigating crimes committed in Afghanistan, the United States imposed sanctions on ICC officials ^{[5, p. 286]} (the United States has long noted that the activities of the ICC could pose a threat to their national interests ^{[15, p. 169]}). All the above facts indicate that the work of international justice bodies is not ideal, is largely politicized ^{[2, p. 33]} and is designed to ensure the interests of "strong" states, respectively, the issues of control and supervision of the activities of international criminal courts, especially the ICC, are currently extremely relevant not only in in our state ^{[11, p. 26]}, but also in many other countries of the international community ^{[7, p. 289]}.

States parties to the ICC Statute can directly influence the activities of the ICC within the framework of the Assembly.

The Assembly has the opportunity to establish subsidiary bodies, including an independent mechanism for inspections, evaluations and investigations of the Court, to enhance its effectiveness (article 112, paragraph 4, of the ICC Statute). On the basis of this article, a special subsidiary body was established – the "Independent Oversight Mechanism", endowed with the ability to monitor and supervise the activities of ICC officials, conduct investigations and analyze the legality of the adoption of acts by ICC officials. All allegations of "misconduct" against any employee must first be referred to an Independent Oversight Mechanism that has the authority to evaluate or investigate any allegations of misconduct against employees. Investigation reports that establish misconduct are submitted to the Secretary or Prosecutor, depending on the circumstances, together with a recommendation to initiate disciplinary proceedings.

The independent oversight mechanism operates independently of the management structures of the ICC, which allows it to perform supervisory functions without any undue influence. The Mechanism reports directly to the Assembly of States Parties, which is the governing body of the ICC. The independent oversight mechanism has broad investigative powers, including the right to interview witnesses, examine documents and collect evidence. The Mechanism can also make recommendations to the ICC on issues related to investigations, prosecutions and other aspects of the functioning of the ICC.

An independent oversight mechanism establishes an opportunity for the general public to report any concerns they may have about the conduct of ICC staff. As part of the work of the independent oversight mechanism, procedures have been developed that are accessible to users for filing complaints or allegations of misconduct by ICC officials, including a due diligence procedure, based on paragraph 82 of resolution ICC-ASP/21/Res.2, which provides for the opportunity for interested persons to provide their information that may be an obstacle to appointment officials for the position.

The independent oversight mechanism prepares periodic reports on its activities and findings, which are made available to the public. These reports are published on the official website of the Assembly of States Parties and promote transparency and accountability in the ICC, as well as are designed to strengthen public confidence in the Court's activities.

It should be noted that the Assembly of States Parties is working to continuously improve the work of the ICC, including on the issues of an independent oversight mechanism. 

On September 30, 2020, an independent expert group established by the Assembly of States Parties to the Rome Statute of the International Criminal Court compiled a "Final Report" in which it reflected its recommendations on improving the work of the ICC.

The report contains recommendations that relate to the internal complaint procedures at the ICC. In recommendation No. 115, the experts pointed out that the ICC's internal justice system should be open to all, including non-staff, former employees and elected officials, in order to simplify and centralize various disciplinary procedures. It is assumed that a unified internal justice system will ensure equal minimum standards of ethics and professionalism for all, as well as increase the transparency of such a system.

Recommendation No. 116 suggests that dispute resolution within the ICC will be more effective if such disputes are handled by professional participants. In this regard, it is planned to abolish the Disciplinary Advisory Committee, the Appeals Board, as well as the special mediation procedure, which is currently carried out by employees. Experts point out that such an approach would be consistent with the decisions of other international organizations to abandon the mechanisms of internal justice based on collegial interaction.

Recommendation No. 117 proposes to create a procedure involving a dispute judge in the first instance - a national or international judge with experience in international administrative matters, instead of a collegial appeal against administrative decisions, who will not hold a permanent position, but will be involved in work as needed. A register of suitable judges may be created for this purpose. To consider complaints of increased complexity against judges, a Prosecutor or a deputy Prosecutor, a panel consisting of three judges may be appointed, which will make a decision in the first instance.

Recommendation No. 118-119 refers to the establishment of the position of the Ombudsman, whose position will be appointed on a competitive basis, for the consideration of disputes and conflicts in an informal, friendly and effective manner together with the mediation service, as a preliminary, but optional instance for the resolution of disputes and conflicts. Recourse to mediation services will be mandatory only for the parties in the case of an administrative dispute before filing a complaint to the judge in the first instance. Before the complaint is referred to the judge of the first instance, it will first be reviewed by a human resources analyst and, if necessary, an independent reviewer appointed by the head of HRS.

Recommendation No. 120-121 refers to the possibility of studying by the court to refer appeals on administrative issues to the UN Appeals Tribunal, and not to the Administrative Tribunal of the International Labour Organization. It is assumed that such a solution would be more cost-effective and would be consistent with the court's use of the UN common system. All decisions in this area should be made taking into account the strengthening of transparency, confidentiality and trust, so that court staff can use these mechanisms more often.

On June 11, 2021, the Court submitted to the Assembly of Participating Countries its general response to the report of an independent expert group containing a preliminary analysis of the recommendations. In accordance with this preliminary analysis, the court indicated that it would prepare an assessment with a detailed description of the costs that would entail the transition to the UN Internal Justice System, as well as legal, political and practical considerations on this issue. The Court notes, for example, that the appeal to the Administrative Tribunal of the International Labour Organization is enshrined in the Staff Regulations of the Court, accordingly, any amendments to these rules must be authorized by the Assembly. Therefore, a thorough evaluation will contribute to a comprehensive analysis of the proposed recommendation.

In addition, the Court consulted with a wide range of stakeholders and received information from them, including the United Nations Office for the Administration of Justice, the Office of the UN Ombudsman and the Mediator. It is assumed that the new system of internal justice can be put into effect by 2024, if the decision to switch to the UN Appeals Tribunal is made by the Assembly of States Parties.

Thus, according to the results of the study, the author comes to the following conclusions: despite the fact that the Independent Oversight Mechanism in the ICC serves as a necessary guarantee of maintaining standards of accountability and integrity in the organization, strengthening its role in promoting justice, the capabilities of this mechanism today cannot fully protect the interests of States that are not parties to the Statute The ICC, including Russia. In this regard, a possible proposal may be the creation of an independent oversight mechanism for the work of international courts and tribunals within the UN Security Council, with the right to veto resolutions of the five permanent members.

Also, due to the fact that many international judicial institutions are "young institutions" (compared to national courts, which have been studied for many years), there is an opportunity for new studies of the supervisory mechanisms for these organizations. This is certainly an important issue, since research in this area will increase the legitimacy and accountability of international justice, because effective oversight is crucial to ensure a fair and impartial administration of justice, in which the very possibility of political influence would be excluded. Without a deep and comprehensive understanding of oversight mechanisms and their potential shortcomings, it becomes difficult to identify the necessary areas for improvement. In this regard, we believe that comparative studies based on the experience of various international judicial and national institutions in various legal systems of the world can provide valuable insight into best practices.