ICC Prosecutor Symposium: The Search for the New Prosecutor is Too Narrow in Scope

[William Schabas is a Professor of international law at Middlesex University London and Professor of international criminal law and human rights at Leiden University. Have a look at Justice in Conflict for a symposium post from Douglas Guilfoyle.]

Article 42(3) of the Rome Statute specifies that the Prosecutor of the International Criminal Court shall ‘be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases’. Perusal of the travaux préparatoires suggests that this was a manifestation of some of the over-engineering of the Statute by delegates to the Rome Conference. It doesn’t appear that much thought, if any, was given to the core skills that the independent Prosecutor would really require. Rather than interpret Article 42(3) in a broad manner, so as to obtain the best candidates, the tendency of the Assembly of States Parties and of those directly involved in the search has been to narrow the job description even more than in the unsatisfactory terms of the Statute itself.

It seems implausible that the drafters of the Rome Statute meant to correct perceived deficiencies of previous international prosecutors. Surely they did not consider that justice had suffered because those responsible for prosecution at Nuremberg and The Hague prior to 1998 lacked competency or practical experience in handling criminal trials. Yet the greatest of them all, Robert Jackson, appears to have had no prior experience prosecuting criminal trials. Jackson never even had a university law degree. During the drafting of the Rome Statute there were two active international prosecutors: Richard Goldstone, who served as prosecutor of the ad hoc tribunals for the first two years of their existence, and then his successor Louise Arbour. Neither had prosecutorial experience although they may have served as trial judges in some domestic criminal cases.

Jackson, Goldstone and Arbour were brilliant prosecutors because of an impressive array of abilities including a seemingly innate understanding of the political realities of their task. Any one of them would have made a superb Prosecutor at the International Criminal Court. It is doubtful, however, that as things now stand any of them would even have made the shortlist. The elements that made them such stellar candidates, moving to the head of the pack well in advance of those with superior technical competency in criminal prosecution, seem to be undervalued, even ignored, in the process of selection of the next Prosecutor of the International Criminal Court.

A flexible reading of Article 42(3) could open the door to individuals like Jackson, Goldstone and Arbour, despite the literal wording of the provision. As the supreme legislative organ of the Court, the Assembly of States Parties has the authority for full-blown amendment of the Statute as well as the ability to modify its provisions through changes to the Rules of Procedure and Evidence. Surely it can turn a blind eye to excessively narrow formulations like that of Article 42(3) in its efforts to ensure the future – the survival – of the Court. The job description of the Prosecutor, like that of the judge found in Article 36 of the Statute, can be applied loosely by the Assembly of States Parties. After all, it is, in a sense, the owner of the text, and a body entitled to provide its authoritative interpretation. It can even ignore some of the Statute’s terms, such as the requirement that there be only one judge per nationality.

Yet rather than attenuate the rigour of Article 42(3) in order to facilitate the candidacies of modern day Jacksons, Goldstones and Arbours, the Assembly of States Parties has turned in the other direction. The job announcement, posted on 31 October 2019, says candidates should have ‘an advanced university degree (Master’s degree or equivalent) in law’, adding ‘if possible, with a specialization in criminal law and procedure’. It says that ‘[t]he successful candidate will have extensive and proven practical experience, in particular as a prosecutor, in the investigations, trials and appeals of complex criminal cases’. Where did any of his come from? Certainly not the Statute.

The greatest skills required of the Prosecutor are nowhere to be found in the job description posted by the Assembly of States Parties. If the principal qualifications are not apparent from a reading of the Statute, they have surely become so with the progress of the Court. The Prosecutor of the ICC is solely responsible for the selection of situations (subject perhaps to some measure of intervention by the Pre-Trial Chamber, a matter still being adjudicated). She or he takes the decision whether to investigate and prosecute in Palestine or Afghanistan, in Ukraine or Côte d’Ivoire, in Colombia or Venezuela, in Uganda or Myanmar. She or he alone determines whether those being prosecuted are military commanders, political leaders, religious personalities, industrialists, leaders or lackeys.

Even the earlier prosecutors, like Jackson, Goldstone and Arbour, never had to select the situation. That was done for them by the political bodies that created the tribunals. Their discretion was confined essentially to designating the prominent personalities within the situation, to choosing between an Eichmann and a Speer, a Tudjman or a Milošević. With very limited resources compared to predecessors at the earlier tribunals, bearing in mind the magnitude of the task, the Prosecutor of the ICC must do so much more in steering the policies and priorities of the institution within a complex international environment.

The initiatives and the decisions of the ICC Prosecutor are often made in the midst of sensitive transitional justice processes, where an acute understanding of the history of a conflict and of the political dynamics is essential. Think of the determinations that Luis Moreno Ocampo was required to make in Uganda when President Museveni requested that he drop the arrest warrants against the leaders of the Lord’s Resistance Army. Or when the African Union campaigned to suspend plans to prosecute Sudan’s President so as not to disrupt negotiations aimed at ending a protracted civil war. Fatou Bensouda found herself in the midst of the Colombian peace process as part of an endless preliminary examination. At one point, she even intervened before the national Constitutional Court, setting out limits she thought to be required in a domestic peace agreement.

Special skills are required that may be very remote from the life of a career prosecutor with a great track record in complex criminal trials, not to mention an LLM, computer literacy and language fluency. The job description issued by the Assembly of States Parties ought to have said this: ‘The Prosecutor has unprecedented authority to select not only cases but also situations. This requires great knowledge of the international political and legal context. The successful candidate must have the ability to take extraordinarily difficult decisions about policy that will inevitably be controversial. Great courage may also be required. Often issues of war and peace may hang in the balance, where a mistaken assessment may bring large-scale death and suffering. This is not a job for the faint-hearted.’ But there is no sense of this in the announcement.

Advanced degrees and courtroom experience in complex cases don’t begin to prepare someone for such a job. The real requirements actually resemble those of a minister of justice or an attorney-general, not those of a district attorney or prosecutor, no matter how gifted. It is a task for a visionary. What we have now is a job description fit for a Deputy Prosecutor or a senior counsel, not the Prosecutor of the International Criminal Court. The core skills that are required for this utterly decisive position, so central to the future of the entire institution, are absent from the search.