[827] Assembly of States Parties
General remarks
Although national courts are independent they all depend on political institutions in relation to issues such as financing and management. The same applies to international tribunal and courts. The United Nations Security Council, General Assembly and Secretariat all had a role in relation to the ad hoc tribunals. During the negotiations of the Rome Statute, the question of the Assembly of States Parties was part of the discussions on the overall question of the relationship between the United Nations and the Court. Considering that the ICC is independent of and a distinct organisation in relation to the UN another option was sought. Considering that the Court is based on treaty it is logical that the political body is a gathering of states parties, which is normal for other treaty regimes.
   Article 112 deals with participation of States Parties as well as non-States Parties, functions if the Assembly, establishment of a Bureay, decicion making, non-cooperation with the Court and default in payment of dues.

Preparatory works
The first proposal for a general assembly of states parties was raised in the French Working Paper on the Draft Statute of the Court submitted to the Preparatory Committee in 1996, see U.N. Doc. A/AC.249/L.3 (7 August 1996).

Author: Mark Klamberg

Updated: 30 June 2016

[828] 1. An Assembly of States Parties to this Statute is hereby established. Each State Party shall have one representative in the Assembly who may be accompanied by alternates and advisers. Other States which have signed this Statute or the Final Act may be observers in the Assembly.
Paragraph 1 deals with participation in the Assembly and distinguishes between States Parties who have an inherent right to participate and other states. Other States that have signed the Statute or the Final Act may be observers in the Assembly. 
   Each State Party shall be represented by one representative, who may be accompanied by alternates and advisers. Each Observer State may be represented in the Assembly by one designated representative, who may be accompanied by alternates and advisers. The representative may designate an alternate or an adviser to act in his/her capacity (Rule 23 of the Rules of Procedure of the Assembly of States Parties).
   Rule 92 of the Rules of Procedure of the Assembly of States Parties provides that representatives designated by entities, intergovernmental organizations and other entities that have received a standing invitation from the General Assembly of the United Nations pursuant to its relevant resolutions to participate, in the capacity of observers, in its sessions and work have the right to participate as observers, without the right to vote, in the deliberations of the Assembly. Similarly, representatives designated by regional intergovernmental organizations or other international bodies invited to the Rome Conference, accredited to the Preparatory Commission for the International Criminal Court or invited by the Assembly may participate as observers, without the right to vote, in the deliberations of the Assembly.
   Even states that have not signed the Statute or the Final Act may be present during the work of the Assembly. Rule 94 of the Rules of Procedure of the Assembly of States Parties provides that "At the beginning of each session of the Assembly, the President may, subject to the approval of the Assembly, invite a given State which is not a party and does not have observer status to designate a representative to be present during the work of the Assembly. A representative who is so designated may be authorized by the Assembly to make a statement". 

Author: Mark Klamberg

Updated: 30 June 2016

[829]2. The Assembly shall:
(a) Consider and adopt, as appropriate, recommendations of the Preparatory Commission;
The Preparatory commission was established at the Rome conference 1998 pursuant to Resolution F of the Final Act (U.N. Doc. A/CONF.183/10). The Preparatory Commission was tasked to prepare proposals for practical arrangements for the establishment and coming into operation of the Court, which were all transmitted together with a report of the Commission to the Assembly of States. Pursuant to Resolution F the Commission was in existence until the conclusion of the first meeting of the Assembly of States Parties.

Author: Mark Klamberg

Updated: 30 June 2016

[830] (b) Provide management oversight to the Presidency, the Prosecutor and the Registrar regarding the administration of the Court;
This paragraph for the oversight function of the Assembly over the predominant representatives of the Court including the Presidency, the Prosecutor and the Registrar. There was some controversy during the negotiations whether the term "administration" covers judicial administrations in addition to the operations of the Court. Some delegations argued that this oversight should be narrow in the sense that that there was no intrusive oversight into the Courtäs judicial administration. In light of the negotiating history, the term "administration" should not include judicial activities of the Court (Rao, 2008, p. 1691).

Author: Mark Klamberg

Updated: 30 June 2016

[831] (c) Consider the reports and activities of the Bureau established under paragraph 3 and take appropriate action in regard thereto;
When it is not in session, the responsibilities of the Assembly are direct by the Bureau of Assembly established under paragraph 3. The Assembly is to consider the reports and activities of the Bureau and take appropriate action in regard thereto.

Author: Mark Klamberg

Updated: 30 June 2016

[832] (d) Consider and decide the budget for the Court;
The Assembly is to consider and decide the budget for the Court. It may be read together with paragraph 5(f) of Resolution F of the Final Act (U.N. Doc. A/CONF.183/10) which provides that Preparatory Commission shall prepare a budget for the first financial year. Rule 90 of the Rules of Procedure of the Assembly of States Parties confirms that the Assembly shall decide on the budget, which shall comprise the expenses of the Court and the Assembly, including its Bureau and subsidiary bodies.
   As in the case of other international organizations it is reasonable that in practice the budges is prepared by and originates from the Court, more specifically the Registrar. Paragraph 2 omits any provision that the Assembly should consult with the registrar. However, paragraph 5 provides that The President of the Court, the Prosecutor and the Registrar or their representatives may participate, as appropriate, in meetings of the Assembly and of the Bureau. This means that the Statute provides an opportunity for the Registrar to give input concerning the Court's financial requirements. 

Author: Mark Klamberg

Updated: 30 June 2016

[833] (e) Decide whether to alter, in accordance with Article 36, the number of judges;
The Assembly of States have the authorIty to alter the number of judges. The method and procedure in alterating the number of judges should be in accordance the provisions of appointing judges contained in Article 36.

Author: Mark Klamberg

Updated: 30 June 2016

[834] (f) Consider pursuant to Article 87, paragraphs 5 and 7, any question relating to non-cooperation;
Where a State Party fails to comply with a request to cooperate by the Court, the Court has the power pursuant to Article 87(5) and (7) to make a judicial finding and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.
   It is not clear whether the Assembly of States Parties can raise the issue of non-compliance on its own initiative (Schabas, p. 1124).

Author: Mark Klamberg

Updated: 30 June 2016

[835] (g) Perform any other function consistent with this Statute or the Rules of Procedure and Evidence.
Paragraph (g) is residual and allows the Assembly of States Parties to perform any other function consistent with this Statute or the Rules of Procedure and Evidence. Several other provisions in the Rome Statute set out responsibilities for the Assembly of States Parties, including Articles 2, 3, 9, 36(2)(c)(i), 36(4), 36(6), 42(4), 43(4) 44(3)(4), 46(2), 49, 51, 79(1), 79(3), 113, 117, 119(2) and 121(2)(3).

Author: Mark Klamberg

Updated: 30 June 2016

[836] 3. (a) The Assembly shall have a Bureau consisting of a President, two Vice-Presidents and 18 members elected by the Assembly for three-year terms.
The Statute provides that the Assembly shall have a Bureau consisting of twenty-one members with a President, two Vice-Presidents and eighteen members elected by the Assembly for three-year terms. It is normal for international institutions to have a bureau with administrative responsibilities operating when the Assembly is not in session.

Author: Mark Klamberg

Updated: 30 June 2016

[837] (b) The Bureau shall have a representative character, taking into account, in particular, equitable geographical distribution and the adequate representation of the principal legal systems of the world.
In the choice between having a bureau based on the doctrine of principal legal systems or the principle of geographical representation, both criteria are to be equally considered.

Author: Mark Klamberg

Updated: 30 June 2016

[838] (c) The Bureau shall meet as often as necessary, but at least once a year. It shall assist the Assembly in the discharge of its responsibilities.
The bureau shall assist the Assembly in the discharge of its responsibilities set out in paragraph 2. In addition, paragraph 6 provides that the Bureau has the competence to convene special sessions of the Assembly on its own initiative.

Author: Mark Klamberg

Updated: 30 June 2016

[839] 4. The Assembly may establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy.
The Assembly may establish "subsidiary bodies [...] 8 in order to enhance its efficiency and economy". Four such bodies have been established: the Committee on Budget and Finance; the Staff Pension Committee; the Trust Fund for Victims (Article 79); and the Oversight Committee on Permanent Premises (see Schabas, p. 1127).

Author: Mark Klamberg

Updated: 30 June 2016

[840] 5. The President of the Court, the Prosecutor and the Registrar or their representatives may participate, as appropriate, in meetings of the Assembly and of the Bureau.
Although paragraph 5 provides the President of the Court, the Prosecutor and the Registrar or their representatives may participate in meetings of the Assembly and of the Bureau, it is silent whether they do so as members or as observers. One argument raised by some delegations during the negotiations in favour of restricting their roles to observers was the interest to avoid confusing the Court's judicial functions with the political and administrative role of the Assembly (Schabas, p. 1129).

Author: Mark Klamberg

Updated: 30 June 2016

[841] 6. The Assembly shall meet at the seat of the Court or at the Headquarters of the United Nations once a year and, when circumstances so require, hold special sessions. Except as otherwise specified in this Statute, special sessions shall be convened by the Bureau on its own initiative or at the request of one third of the States Parties.
The Assembly shall meet at the seat of the Court or at the Headquarters of the United Nations once year. In addition, special sessions may be held "when circumstances so require". The Assembly may hold special sessions and fix the date of commencement and the duration of each such special session.
   Special sessions of the Assembly may also be convened by the Bureau on its own initiative or at the request of one third of the States Parties pursuant to rule 8 of the Rules of Procedure of the Assembly of States Parties.

Author: Mark Klamberg

Updated: 30 June 2016

[842] 7. Each State Party shall have one vote. Every effort shall be made to reach decisions by consensus in the Assembly and in the Bureau. If consensus cannot be reached, except as otherwise provided in the Statute:
The general rule is that decisions are made by consensus. In the event of failure to reach consensus different alternatives of adopting decisions are set out depending on the character of the decision, as set in sub-paragraphs (a) and (b).
   There is a saving clause "except as otherwise provided in the Statute" which means that other provisions of the Statute will prevail over the general rules set laid down by paragraph 7. There are at least two areas where different rules apply: 1) election and removal of judges (Articles 36(6)(a) and 46(2)(a)); and 2) amendments to the Rome Statute and convening a review conference (Articles 121(4), 122(2), 123(2)).

Author: Mark Klamberg

Updated: 30 June 2016

[843] (a) Decisions on matters of substance must be approved by a two-thirds majority of those present and voting provided that an absolute majority of States Parties constitutes the quorum for voting;
Decisions on matters of substance must be approved by a two-thirds majority of those present and voting. If the question arises whether a matter is one of procedure or of substance, the President shall rule on the question, rule 64(2) of the Rules of Procedure of the Assembly of States Parties.
   The term "“States Parties present and voting"” means States Parties present and casting an affirmative or negative vote. States Parties which abstain from the voting shall be considered as not voting (rule 66 of the Rules of Procedure of the Assembly of States Parties).

Author: Mark Klamberg

Updated: 30 June 2016

[844] (b) Decisions on matters of procedure shall be taken by a simple majority of States Parties present and voting.
Rule 65 of the Rules of Procedure of the Assembly of States Parties confirms that Decisions on amendments to proposals relating to matters of substance, and on parts of such proposals put to the vote separately, shall be made by a two-thirds majority of the States Parties present and voting.
   The term "“States Parties present and voting"” means States Parties present and casting an affirmative or negative vote. States Parties which abstain from the voting shall be considered as not voting (rule 66 of the Rules of Procedure of the Assembly of States Parties).

Author: Mark Klamberg

Updated: 30 June 2016

[845] 8. A State Party which is in arrears in the payment of its financial contributions towards the costs of the Court shall have no vote in the Assembly and in the Bureau if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The Assembly may, nevertheless, permit such a State Party to vote in the Assembly and in the Bureau if it is satisfied that the failure to pay is due to conditions beyond the control of the State Party.
This paragraph aims at promoting financial responsability of the States Parties towards the Court by paying their contributions.

Author: Mark Klamberg

Updated: 30 June 2016

[846] 9. The Assembly shall adopt its own rules of procedure.
The Assembly shall adopt its own rules of procedure. Paragraph 5(h) in the Resolution F of the Final Act (U.N. Doc. A/CONF.183/10) provides that the Preparatory Commission shall prepare a proposal for the Rules of Procedure of the Assembly of States Parties  The Rules of Procedure were adopted by consensus by the Assembly of States Parties (Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002, ICC-ASP/1/3).

Author: Mark Klamberg

Updated: 30 June 2016