Governing the International Criminal Court: the history and practice of the Assembly of States Parties to the Rome Statute

This thesis studied how the Assembly of States Parties to the Rome Statute performed its statutory responsibilities to govern the International Criminal Court between 2002 and 2021. While the literature covering the emergence and development of the Court understandably prioritized its judicial mandate in the Rome Statute, this thesis argues that without fully appraising the Assembly of States Parties, such analysis is limited. This is so because Article 112, in Part 11 of the Statute, created a governance body assigning to the States Parties a number of critical functions impacting the life of the Court. In particular, this thesis explored relevant historical antecedents, the drafting history of the Assembly and traced the main responsibilities of States Parties across the Rome Statute.

States Parties, as the masters of the Rome Statute, have a duty to govern the Court as they are also bound to respect its independence. This palpable tension became ever more complex to navigate after the Court became fully operational at the end of the first session of the Assembly of States Parties in 2003. However, governance provisions for international judicial institutions by States Parties to a multilateral treaty did not originate solely with Article 112 in the Rome Statute. There is a rich history that can be traced to three key moments in 1937, 1943 and 1981 that offer an insight into policy options pursued by States at the Rome Conference in 1998. In both cases, choices made in the past have influenced how the Assembly has performed its statutory duties between 2002 and 2021.

Since 2002, both the International Criminal Court and the Assembly of States have faced internal and external challenges calling into question the legitimacy, utility and results of the Rome Statute system in fighting impunity. Even as the Assembly of States Parties negotiated, designed and made decisions to safeguard the Court, several of its actions have also affected the quality of institutional governance and judicial capabilities outlined in the Rome Statute. This has been the case in key statutory responsibilities such as financial oversight, enforcement of cooperation, election of judges and the Prosecutor and other key tasks assigned to multiple subsidiary bodies. Across statutory responsibilities, States Parties retained the power to enhance or hinder the work of the Court. Facing internal and external challenges, the Assembly developed institutional practices while navigating the tension of governing an international criminal court. In doing so, however, political, technical and legal dynamics have affected how well States Parties have steered the Court towards its full potential.

To situate the overall analysis within the long history of international judicial governance institutions, the research begins with a discussion of three key moments in 1937, 1943 and 1981 that offer an insight into policy options pursued by States at the Rome Conference. The study continues by investigating the travaux préparatoires of Article 112 between 1990 and 1998. In then discusses the Preparatory Commission setting up the operations of the Court and the Assembly between 1999 and 2002. The thesis then reviews the practice of the Assembly of States Parties between 2002 and 2021 across governance and management, elections, disciplinary measures and removal of officials, financial oversight, enforcement of cooperation, oversight of auxiliary judicial instruments and amendments and review of the Rome Statute.

The research shows that States Parties’ choices and decisions between 2002 and 2021 have affected the institutional governance and judicial capabilities outlined in the Rome Statute. Tracing 20 sessions of the Assembly of States Parties delivered a complex but rich understanding of the governance dynamics of the Court. Taking the findings of this thesis together, it is possible to notice the unrealized potential of States Parties to actively partner with the Court in finding a common vision to achieve the ideas embedded in the Rome Statute as it enters its third decade.