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THE BANALITY OF GOOD
states will still be the principles exerting more or less control over ICs depending
on whether one views courts as agents or trusties.
On the other hand, the Report takes a completely different approach when
reviewing the ICC one that is more appropriate to studying national court systems.
What this means is that rather than seeing IC as single unified entities that perform
a function and interact with other actors, both national and international, the
Report sees the ICC as a complex organization complete with a complex internal
bureaucracy staffed by fallible human beings.
Part of the reason for this is due to the nature of the ICC itself, which
distinguishes it from other IC. For one, the Report distinguishes between the ICC
as an international organization, and ICC as a Court, and within ICC as a Court, it
distinguishes between the Court in the narrow sense, the Office of the Prosecutor
(OTP) and the Registrar. Consequently, it has no other choice but to look at the
ICC in a disaggregated manner if it wants carry out its mandate.”° Once this step
has been made, there really is no good argument to be put forward against the
idea of why disaggregating it further and seeing how the sub-units within these
separate branches operate.
This of course has further consequences as to how we see ICs. Let us continue
the A-P argument from above. Notice that that argument is about courts as a
whole. Either the states are the Principals (i.e. in charge) and the courts are the
Agents, or the courts are Trusties, working for the benefit ofthe entire system, not
just the Agents. The only avenue from where the independence of the court can be
threatened is from the states — the Principals. But once we disaggregate a court
and see that it is made up of a complex structure of organs and departments, we
can continue to ask questions like: how do the operations and practices of these
organs and departments impact the independence of the court? Who has power
within that organization or department, and how does it affect the independence
of the court?
We know from studies of domestic courts that in those systems where there is
a separate judicial council isolating the judiciary from the political branches, an
overly powerful president of either the judicial council or of a specific court can
have an outsized influence on the organization impacting the independence of the
courts.”! Similarly, the Report picks up on this very same issue when discussing
the election of the Presidency of the Court. The Presidency, comprised of the
President and the First and Second Vice-Presidents, has the power to call judges
to full time service as well as assign them into Chambers once they are selected
20 Paragraphs 26-31 of the Report.
2! David Kosat, Perils of Judicial Self-Government in Transitional Societies, Cambridge, CUP,
2016.
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