The Next ICC Prosecutor: A Joint Opinio Juris and Justice in Conflict Symposium

[Kevin Jon Heller is Associate Professor of Public International Law at the University of Amsterdam and Professor of Law at the Australian National University; Mark Kersten is a Senior Consultant at the Wayamo Foundation and creator of the blog Justice in Conflict; Patryk I. Labuda is a Postdoctoral Scholar at the Fletcher School of Law and Diplomacy; and Priya Pillai is a lawyer and international law consultant.]

Quite naturally, the world’s attention has been focused on the terrible suffering created by the COVID-19 pandemic. Life, however, goes on – including at international institutions. The International Criminal Court (ICC) is a case in point: with Fatou Bensouda’s tenure as the second Prosecutor in the Court’s history coming to an end, the Assembly of States Parties (ASP) is gearing up to elect her successor. The deadline for applications closed last November, and the ASP-appointed Committee on the Election of the Prosecutor is scheduled to hold interviews on April 24. We should know who the leading candidates are not long after that.

It is difficult to overstate the importance of the election. Even the ICC’s most enthusiastic supporters acknowledge that the Office of the Prosecutor (OTP) has struggled to conduct effective investigations and to mount convincing prosecutions. The choice of the next Prosecutor will have a profound effect on how well – or how poorly – the Court functions for the next eight years. Simply put: the ASP has to get this right.

To assist the Committee and the ASP, the four of us asked a wide variety of individuals who work in international criminal justice – scholars, practitioners, activists – to reflect on a number of questions concerning not only the choice of the next Prosecutor, but also how the next Prosecutor should think about his or her role:

1. What is/should be the role of prosecutors in international criminal tribunals?

2. How should the Prosecutor engage states parties and non-states parties?

3. How, if at all, should the next Prosecutor confront major powers in the world?

4. What role should the next Prosecutor play in reforming the OTP? / Court?

5. What can and should the next Prosecutor do to improve the ICC’s investigation techniques?

6. Should the next Prosecutor address the Africa-ICC relationship? If so, how?

7. How do we assess the Prosecutor’s performance? 

8. What is your assessment of the first two ICC Prosecutor’s performance? What did Luis Moreno Ocampo and Fatou Bensouda get right/wrong?

9. What methods do we use to hold the Prosecutor accountable for his/her performance?

10. How should the next Prosecutor deal with the OTP’s ongoing preliminary examinations?

11. How should the next Prosecutor deal with the OTP’s ongoing situations? Closing situations?

12. What strategies should the next Prosecutor employ to strategically communicate with the Court’s constituencies (states, affected communities, interested observers, scholars, etc.)?

13. How can the next ICC Prosecutor live up the Court’s promise to effectively investigate and prosecutor SGBV crimes?

14. What is the procedure for selecting the next Prosecutor? Process, transparency and lessons learned from previous elections.

15. Who should be the next Prosecutor? Desirable experience/background.

The result of our inquiries is a symposium that will run for the next 10 days at both Opinio Juris and Justice in Conflict. We will kick off the joint symposium with posts by Luis Moreno-Ocampo, the first Prosecutor at the ICC, and by David Crane, the first Prosecutor at the Special Court for Sierra Leone. We will then publish a number of posts each day next week, some at Opinio Juris and others at Justice in Conflict. We encourage readers to read the posts at both blogs – and to tell us what you think!

Update (20 April 2020): Here is a list with all the posts in the symposium, with links. Enjoy!

• Luis Moreno Ocampo, The Challenges for the Next ICC Prosecutor
• David Crane, The Chief Prosecutor: Diplomat, Politician, Leader, Manager, and Lawyer
• Liz Evenson, The Next ICC Prosecutor Should Resolutely Hold the Most Powerful to Account
• Christian De Vos and Mariana Pena, Electing the Next ICC Prosecutor: A Generational Opportunity,
• Stephen Lamony, The Next ICC Prosecutor
• Geoff Dancy, Evaluating the ICC’s Chief Prosecutor
• Tom Dannenbaum, Against Modesty at the ICC
• Douglas Guilfoyle, How do we assess the performance of the ICC’s first Prosecutors?
• William Schabas, ICC Prosecutor Symposium: The Search for the New Prosecutor is Too Narrow in Scope
• James A. Goldston, Choosing the Next ICC Prosecutor: Lessons from the Past
• Jonathan O’Donohue, Wanted–International Prosecutor to Deliver Justice Successfully Across Multiple Complex Situations with Inadequate Resources
• Ewan Brown and William Wiley, What can and should the next Chief Prosecutor do to improve the ICC’s investigation techniques?
• Kate Vigneswaran and Melinda Taylor, The Appointment of the Next ICC Prosecutor Is Not a Forum for Career Transition
• Patryk I. Labuda, Less is More: Rediscovering the Prosecutor’s Core Mandate
• Beth Van Schaak, ICC Prosecutor Symposium: Advice for the Incoming ICC Prosecutor–Engage the U.S. Public Directly
• Mark Kersten, The Politics of a Prosecutor: Getting the Context Right
• Kate Gibson, Coming full circle: Should the third Prosecutor try to solve the ICC’s “Africa problem”?
• Valerie Oosterveld, The Prosecutor’s Commitment to Ensuring Gender Equality
• Danya Chaikel, The Next ICC Prosecutor Must Embody Integrity in the #MeToo Era
• Kevin Jon Heller, The ASP Should Choose a Prosecutor from the P-3
• Priya Pillai, “Mind the Gap”–Insights from Asia
• Alex Whiting, What to Look for in the Next ICC Prosecutor
• Diane Marie Amann, Placing the Prosecutor within the International Criminal Justice Project
• Charles C. Jalloh and Sabina Nölke, The ICC Assembly of States Parties’ Selection Process for the Third ICC Prosecutor