ICC Prosecutor Symposium: The Appointment of the Next ICC Prosecutor Is Not a Forum for Career Transition

[Kate Vigneswaran is a Senior Legal Advisor with the International Commission of Jurists. She previously worked in the Immediate Office of the Prosecutor and OTP Appeals Division at the International Criminal Tribunal for the Former Yugoslavia. Melinda Taylor is currently acting as Lead Counsel for the Defence of Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud before the ICC, and has been engaged in Defence cases before the ICC since April 2006, including as Counsel in the Office of Public Counsel for the Defence. This post was written together to underscore that there is common ground between both prosecution and defence perspectives. Please don’t miss James A. Goldston’s post in the symposium at Justice in Conflict: Choosing the Next ICC Prosecutor—Lessons from the Past.]

The public release of the names of several candidates vying for the position of ICC Prosecutor has triggered a significant amount of speculation and comment as to their suitability for what is arguably the most high-profile prosecutorial appointment in the world. This post will focus on the abstract qualities that should define this role, rather than the specific qualities of individual candidates. That being said, given the length of the appointment (nine years), it is essential that the successful candidate has a proven track record in a directly analogous post. Given the precarious state of international justice, and the absence of any probation period, now is not the time for horse trading or taking a gamble on an interesting profile. 

Jack of all trades, master of none?

It would be a rare person who meets all the competencies generally viewed as essential to the post; an accomplished courtroom litigator, investigator, prosecution strategist, manager, and delegator with a commitment to the objectives of international justice, in-depth technical knowledge of international criminal law, international humanitarian law and human rights law and knowledge of the country contexts and crimes over which the Court exercises jurisdiction, while being an adept communicator. The current structure of the Office of the Prosecutor (OTP), with a deputy prosecutor and chiefs of investigation, prosecution and appeals – all of whom should hold the same qualities – make this possible provided there is a recognized diversity of skills encompassing the core competencies required of the role spread across them that is utilized effectively. This suggests that one of the Prosecutor’s most important qualities will be the ability to recognize their own limitations, as concerns both time and capacity, and willingness to empower others within the Office to deploy their skills accordingly. Ultimately, the Prosecutor is one among many prosecutors: he or she does not need to be the smartest or sharpest litigator in the room, but does need to have the vision and skills, as a manager and leader, to obtain the best performance possible from every other prosecutor in the room. 

Transforming crisis management into positive performance

The ICC has been “in crisis” since its inception, whether it was triggered by the threat of Article 98 agreements, intermediary imbroglios, world recessions, African Union walkouts, Pompeo tantrums, or unexpected outcomes. It was, perhaps, inevitable that the shiny institution feted in the mid-noughties would lose its luster with certain States as soon as it stopped being a dumping group for military and political opponents, and turned its gaze to those on the thrones of power. But if the Prosecution is to function independently, impartially, and fairly, feathers will continue to be ruffled. It might therefore be time to stop characterizing each and every backlash as a “crisis,” and view this landscape as the new normal. For the next Prosecutor, a key issue will therefore concern their ability to eschew a defensive “bunker style” mentality, in favour of a positive vision as concerns how the Prosecution can achieve its mandate effectively, within hostile environments.

This suggests that the extent to which candidates have demonstrated communication skills to engage in outreach and, where appropriate, diplomacy should be a key consideration. The Rome Statute requirement that the Prosecutor “be highly competent in and have extensive practical experience in the prosecution or trial of criminal cases” was expanded in the vacancy announcement, requiring the prosecutor to provide “overall strategic and management guidance, direction and leadership in relation to the investigations and prosecutions of complex crimes in diverse crime bases and geographic contexts as well as establishing relevant policies and priorities for the OTP.” There are many experienced senior prosecutors with years, and some decades, of such experience at both the domestic and international level. However not all of them are also experienced and adroit managers, or have the communication expertise that might be required of this role, particularly in areas in which other OTP officials or organs do not engage.

One of the most significant challenges faced by the ICC has been its inability to enforce arrest warrants and obtain the cooperation of States necessary to access evidence. As experience at the International Criminal Tribunal for the Former Yugoslavia shows, diplomatic skills were essential to achieving the necessary cooperation to enforce arrest warrants, particularly against Serb perpetrators. While the achievements there are notably much more difficult to replicate across the many jurisdictions in which the ICC currently operates, a greater emphasis on political negotiations and use of any available leverage – for example, by encouraging states to condition aid on cooperation with the ICC – seem necessary at this juncture, particularly given the Assembly of States Parties and Security Council’s limited responses to non-cooperation have yielded little in the way of results.

Putting the “International” into the ICC, while ensuring a multi-dimensional vision of complementarity

Needless to say, the Prosecutor must carry out their role independently of any political interference and without allowing political considerations to play an overriding role when determining case selection or strategy. In the highly politicized context of international criminal justice, however, they must navigate the political realities to get the job done, whilst ensuring that the Court’s sources of funding and cooperation do not determine its outlook or ethos: that those who pay the piper don’t call the tune.

This is no easy task, particularly with the current roster of situations before the Court. The current Prosecutor’s decision to pursue investigations arising from Myanmar, Afghanistan, and Palestine is laudable. It will also leave her successor with a range of quandaries as concerns access to evidence, and the feasibility of implementing arrest warrants. This comes on the heels of concerns that evidentiary shortcomings have resulted in acquittals and an inability to bring cases to fruition, as well as concerns about regional selectivity.

One such critique relates to the challenges involved in targeting only the most senior perpetrators in any given situation – a Rome Statute requirement which diverges from a fairly common prosecutorial “pyramid” strategy to first target lower level perpetrators to obtain evidence to build the case and possibly “turn” them to testify against their superiors – which has implications for both the OTP’s ability to obtain evidence and to arrest perpetrators, particularly those who continue to exercise head of state functions.

While Prosecutor Fatou Bensouda has sought to address these issues throughout her tenure, evidenced in part by her recognition in periodic strategic plans that she may target low- and mid-level perpetrators to build cases, such a strategy can only be successful if the possibility to prosecute multiple perpetrators over a longer period of time in each situation exists. A commitment to such a strategy by the new Prosecutor is necessary to reap its benefits. But at the same time, the Prosecution cannot replicate the depth and breadth of ICTY/ICTR-style investigations as concerns each situation before it. What is needed, therefore, is a Prosecutor with a demonstrated ability to forge partnerships with domestic, regional and international investigative bodies, with a view to closing the impunity gap, and creating a less Hague-centric, and more multi-dimensional prosecutorial pyramid strategy.

The dearth of ongoing cases at the ICC will give rise to an inevitable pressure to bring in new cases, but not any case will do. Another critique relates to the capitalization of opportunity rather than pursuit of strategy when it comes to arrests. There are also critiques arising from the choice of charges, including the noticeable absence of sexual violence crimes or sufficiently comprehensive investigations to substantiate them.

A vision for positive performance also requires the new Prosecutor to cast a critical eye on the Office’s performance over the past decade. To move forward, it is necessary to identify the causes of past obstacles. The expert report, commissioned by Bensouda in relation to the collapse of the Kenya cases, contains trenchant criticism regarding investigative and managerial practices that plagued those cases. Some issues related to particular personalities, but many appear to have arisen from managerial and investigate practices embedded within the Prosecution as an organ. A new Prosecutor could simply draw a bright line between the past and the present, and blame ongoing problems on past failures. A true leader would, however, accept personal responsibility for the performance of the Office from day one, and commit to understanding and resolving these issues in a manner which prioritizes future performance over finger pointing or buck-passing.

To meet these needs, the Prosecutor’s management and delegation skills are paramount. They have the difficult task of ensuring coherence and cohesion between the Jurisdiction, Complementary and Cooperation Division, the Investigation Division and the Prosecution Division, while effectively managing hundreds of staff investigating and prosecuting crimes across numerous country contexts. Needless to say, they cannot be a micro-manager, but must be able to recognize gaps in their own expertise and competence within their team (as well as lack of competence), delegate responsibility where appropriate, listen to the advice of their juniors and, accordingly, determine overarching investigation and prosecution strategies. And, crucially, they must take responsibility for their decisions and the decisions of the Office, both in-house and, where appropriate, in public.

An ethics of personal responsibility means walking the walk, not just talking the talk

There is no definition of “high moral character,” as required by the Rome Statute, leaving open to debate and manipulation the characteristics that this condition requires. While requirements like integrity and respect for diversity are explicit in the vacancy announcement, a demonstrated commitment to gender equality and tackling gender issues in the workplace, and to achieving diversity in all its forms, is noticeably absent.

Civil society organizations have been calling for a zero-tolerance policy for sexual harassment, and rightly so. Having both worked in similar settings, and given reports on the incidence and prevalence of sexual harassment in international courts and tribunals, it’s not controversial to note that sexual harassment, particularly of women, is widespread, and has serious implications for staff well-being and the effectiveness of investigations and prosecutions of international crimes, particularly those involving sexual and gender-based violence. It’s not enough to have a legal framework and strategic plan on bullying and harassment. Implementation and institutionalization of a zero-tolerance culture requires commitment at the highest levels, and leading by example. The new prosecutor should themselves have a clean record when it comes to committing, condoning or ignoring sexual harassment. Such a requirement should be directly addressed by the selection committee in the current recruitment process, including by actively seeking information on prior disciplinary action or complaints about sexual harassment, and should be an explicit requirement in future vacancy announcements.

Three of the five Committee members have now indicated their willingness to receive information about the candidates, apparently stressing the confidentiality of the process for persons providing information. The absence of a transparent framework for ensuring such confidentiality is not only generally concerning in terms of due process, but particularly concerning for sexual harassment victims. It will likely mean few people will feel confident enough that their privacy rights will be protected and they won’t be subject to reprisals to come forward. Whether the Committee has any capacity to ensure psychosocial support or has developed referral pathways is also doubtful. Candidates, who are not recommended, may claim a right to access allegations. This possibility must be considered and resolved before individuals expose themselves to the risk of non-consensual disclosure.

There is also a worrying dearth of diversity and women in higher echelons, and this is not for want of talent. It’s 2020, and the notion that a war crimes prosecutor has to be cast in the mould of either Rumpole of the Baily or Tom Cruise from a Few Good Men is long gone. Given that the ICC should strive to be a beacon for international justice, victims and prosecutors around the world should see the Office as an institution, which understand and represents a range of different voices and legal traditions. Merit and experience-based recruitment is essential, but it is equally essential that the new Prosecutor appreciates the merits and experience of women and staff with diverse backgrounds – put simply, that there is no need to choose between a merit-based approach to recruitment and a focus on promoting gender balance and diversity within the Office. 

The Prosecutor as a team player?

The first two Prosecutors loomed large in the public perception of the Court, and its portrayal in the media. This certainly advanced a better understanding of Prosecution priorities and strategies concerning different cases, but also arguably led to blurred lines concerning the difference between the Prosecutor as a leading representative of the Court, as an institution, and the Prosecutor as a party to proceedings, which are presided over by Judges.

Charisma may be important -– a Louis XIVth “sun king” style leader might further raise the profile of the Court – but charisma which shines too brightly, risks overshadowing the Court as a whole (La Cour, c’est moi!). The Court is comprised of the sum of its parts, and it won’t function if those parts don’t fit together. International cases are built on the work of judges, Registry staff, the Prosecution, Defence, and victims’ legal representatives. The golden thread that unites each of these actors is the desire for fair and impartial justice. Each of these actors also have a symbiotic relationship with the Prosecution: victims need the Prosecutor to hear and investigate their complaints, defendants need the Prosecutor to investigate and disclose exculpatory information and to respect their rights, and Judges need the Prosecutor to respect their authority and implement their decisions. The performance of the Prosecutor cannot, therefore, be evaluated in isolation, but must be judged by reference to their relations with other organs, parties and participants. This therefore speaks to the importance of assessing candidates by reference to their ability to strengthen the Court as an institution, through a proven record of collegiality, and willingness to dim their own light in order to bring the image of the Court as a whole into sharper relief.