ICC Prosecutor Symposium: The Next ICC Prosecutor Should Resolutely Hold the Most Powerful to Account

[Elizabeth Evenson is an associate International Justice director at Human Rights Watch.]

Widespread international crimes and the failure of governments to prosecute them make the International Criminal Court necessary. But translating the court’s mandate into action has been fraught with challenges. Significant setbacks in prosecution cases, gaps in communication between the court and affected communities, outstanding arrest warrants, and limited resources, among other factors, have constrained the court’s performance and disappointed expectations.

 The court’s principals took an important step last year in calling for an “independent comprehensive expert review of the court’s performance.” The court’s Assembly of States Parties followed through, commissioning a panel of experts that will deliver a final report in September.

Better practice and policy are needed if the ICC is to achieve more, and the review panel, among other efforts to bring about positive change, has a critical role to play. The court also needs the highest quality leadership. And the Assembly has an opportunity to support the court in the elections that will take place in December—six new judges and its next prosecutor. An institution, particularly a complex one like the ICC, is bigger than a single individual. However, with a nine-year term, the court’s prosecutor has considerable scope to set its direction.

The biggest boost ICC states parties can provide to the Rome Statute project is to elect a highly competent and experienced prosecutor, who with resolute independence will seek to hold even the most powerful to account. In doing that, and far more than any lofty general statement of commitment to the court, they will make clear they are willing to do more on behalf of justice if the court and its officials demand it of them.

The vacancy announcement for the job specifies that candidates should have experience as a prosecutor in complex criminal cases; demonstrated independence and impartiality; commitment to justice, accountability and human rights, and ensuring gender equality; management and leadership experience; and relevant legal knowledge. It also expands on these with nine specific competencies and skills. These are professionalism; judgment/decision making; integrity; strategic awareness; leadership; financial competencies; planning and organizing; communication; and digital technology.

Clearly, these are all highly relevant to identifying the most qualified candidate, including one that embodies the Rome Statute requirement of “high moral character.” Considering the Independent Expert Review under way, the incoming prosecutor should also be committed to seeing through change processes put in place by the Office of the Prosecutor as a result. These qualifications, however, speak less directly to what kind of court, and in turn, what kind of prosecutor, is needed in these difficult times.

The vision that animated human rights organizations like my own and like-minded states to come together and create the ICC was of a court that could hold even the most powerful people to account. It was a vision of a court that could move beyond the (also essential) role of the ad hoc tribunals acting within an authority dependent on the UN Security Council and big-power politics.

It was the prospect of a global court that could tackle entrenched impunity in the face of power and politics that led to the adoption of the ICC treaty in Rome in 1998.  The ICC has yet to fully achieve this vision—although the current prosecutor’s commitment to move forward a number of investigations shows courageous fidelity to it. But it is this vision that breathed life into the movement at Rome. And it is what continues to inspire those, who advocate for its essential role, especially in these difficult times.

Significant pressures are fraying the edges of this vision and could give rise to temptation to steer away from it.  

First, the court’s own performance gaps, which have drained support even among its most principled states parties.  

Second, the court’s workload. There are 13 open situations, requests that could lead to one more, and a number of well-advanced preliminary examinations. Given the time it takes to make progress on cases, along with cooperation, resource, and performance shortcomings, far more situations have been opened than investigations completed. The court’s next prosecutor once again inherits a significant backlog of pressing investigations.

Third, the court’s mandate, not surprisingly, continues to generate politicized opposition. State party support  for  the court’s mandate has been essential, but has required their significant investment to defend —whether at the height of a push for mass withdrawal fueled in particular by the Kenyan government or  recently in the face of Trump administration bullying of court officials.

Taken together, these pressures could cause states parties to lower their ambitions for the court. They could recast the court’s role — and its prosecutor’s – to prioritize what might be perceived as the easiest cases among the court’s vast workload.

This logic has already surfaced in the interpretation given to the “interests of justice” by the pre-trial chamber in the Afghanistan situation. Under its interpretation, operational and cooperation challenges—and the judges’ reasoning included an implicit nod to US attacks on the court—were reason enough to foreclose the investigation. The chamber concluded that the prosecutor’s limited resources would be better spent elsewhere.

This was despite the fact that Afghanistan—in the nature and gravity of crimes and lack of accountability, as the judges themselves found —presented precisely the kind of situation the ICC was set up to address. The pre-trial chamber’s decision not only slammed the door on victims in the Afghanistan situation who had no other recourse to justice. The judges’ logic also appeared to require guarantees of cooperation that, if the court followed the same requirement in future cases, would preclude ICC investigations elsewhere. Resting on questionable legal grounds and against the backdrop of US pressure, the decision further gave rise to damaging perceptions that the court was unwilling to defend its own independence. The appeal chamber’s reversal on March 5, by contrast, is a powerful vindication of maintaining the Rome Statute’s highest ambitions.

Justice is a long game and to do its job, even in “easier” cases, the court needs constant, sustained backing. What support will the court attract—whether from states, other partners, civil society, or, indeed, its own committed, capable staff—if its leadership is seen as tinkering only at the margins, rather than tackling the accused from more powerful states?

To be sure, it is not 1998, and commitment to the global rule-of-law has weakened. Political divisions within the UN Security Council have  made  new referrals nearly unthinkable  just as Sudan’s leaders’ announcement that they would cooperate with the ICC may yet show just how important that referral power can be. But our view is that it is precisely because of this difficult landscape that the court—and its prosecutor—need to remain true to the ambitions and visions of the court that drove its founding. Put simply, to have staying power, to attract the support it needs, the ICC needs to stand for something.  

To be up to the task, the next prosecutor will need to be relentless in defending the Office against pressure to compromise on the mandate set by the court’s founders. Fatou Bensouda, who is finishing up her term as prosecutor, has already faced personal sanction for her decision to seek to move forward in Afghanistan. The prosecutor will need to provide a compelling vision to undergird difficult choices about which situations and cases can be prosecuted in a manner that nonetheless signals their office’s independence and resistance to budgetary or political pressure. Of course, states, whether parties to the ICC or not, should not seek to interfere with the court’s independence. But when they do, its officials need to show they will not be swayed.

How will states parties find such a person? The Committee on the Election of the Prosecutor which will interview candidates in late April, should ask tough questions. What is the candidate’s vision for grappling with the court’s sizable workload? What experience do they have in prosecuting complex criminal cases in the face of political pressure? How have they demonstrated their ability to carry out their previous mandates with independence and impartiality? What strategies will they use to overcome practical and political obstacles in the prosecution of high-level accused? How will they press states for cooperation? And how will they navigate budgetary pressure from the court’s largest funders?

The committee should also adopt a definition of “high moral character” to assist them. Once a shortlist of candidates is announced, a public hearing is planned. Nongovernmental organizations should be given a significant role to ensure that their perspectives inform the election process. And states should resist politicizing the process, refraining from making additional nominations if the shortlist provides the right candidates from which to elect the best prosecutor. In achieving consensus around a single candidate, states parties should put to the side any other consideration beyond merit.