ICC Prosecutor Symposium: The ASP Should Choose a Prosecutor from the P-3

This has been an exceptional symposium, so it’s difficult to know what to add. As many of the contributors have noted, the next Prosecutor, whoever she is, has to be a jack-of-all-trades: a skilled lawyer, so she can oversee effective investigations and prosecutions; a talented administrator, so she can herd the hundreds of cats that populate her office; and a gifted politician, so she can navigate the treacherous waters of state cooperation, the sine qua non of a successful ICC.

Instead of simply reiterating those points, I thought I would offer an unabashed plea for the ASP to not ignore where the next Prosecutor comes from. As we all know, the ASP is a political body, prone to the kind of identity politics that afflicts all international organizations, from the UN on down. That is reflected in the nationality of the first two Prosecutors, the first coming from Argentina and the second from The Gambia. Both countries are in the Global South, and neither are traditional powers.

That is not a criticism of the individuals themselves, and I have no problem with the ASP looking beyond Western Europe and the US for key ICC personnel. But I would respectfully suggest that the ASP needs to be more strategic in the upcoming election, choosing a Prosecutor who not only ticks the relevant boxes personally, but also comes from a member of the P-3 — the US, the UK, or France. (A suitable Russian or Chinese candidate is obviously unlikely.)

Choosing an American or British or French Prosecutor  would have at least three important advantages. To begin with, it would invest the Prosecutor’s home state in the ICC’s success, making the state more likely to support and cooperate with the Court — or at least less likely to actively undermine it, if the next Prosecutor is an American. It is not unreasonable to suggest, for example, that the UK would take the current Iraq preliminary examination more seriously if the Prosecutor was a leading British QC. And the US would find it at least somewhat more difficult to stonewall the Afghanistan investigation if the Prosecutor was an American with years if not decades of experience navigating the complicated political situation in the US. (Especially if the next President is a Democrat and somewhat more willing to engage with the Court.)

A Prosecutor from the P-3 would also help neutralize (though certainly not prevent) allegations of bias if/when the Prosecutor decides to investigate her state of nationality or one of its key allies. Simply put, the “rogue Prosecutor” criticism would be a much harder sell if the next Prosecutor came from the P-3 instead of from the Global South — or even from a lesser power in the Global North. The Iraq preliminary examination and the Afghanistan investigation are once again examples, as is the situation in Palestine. Although nothing will stop Israel from baselessly claiming that the ICC is anti-Semitic, such complaints would lose much of their sting if the Prosecutor was a respected lawyer from one of Israel’s strongest allies.

Finally, and perhaps most obviously, appointing a P-3 Prosecutor would almost certainly increase the Security Council’s support for the ICC. It is no secret that the Security Council has done very little to facilitate the Court’s work — referring situations but not allocating any additional funds, not sanctioning states that violate their international obligations to the Court (Kenya, Sudan), and so on. A P-3 Prosecutor would not be a panacea for those problems, but it is reasonable to assume that an American or British or French Prosecutor would find it easier to motivate the Security Council than a Prosecutor from a non-permanent member or from a state that doesn’t even have a seat on the Council.

I have little doubt that my suggestion will be met with skepticism — both by the commentariat and, more importantly, by the ASP itself. It’s also worth noting that no one on the Committee to Elect the Prosecutor comes from the P-3 and only one member even comes from a relatively powerful state, Canada. (The Experts advising the Committee include individuals from France and Japan.) But I think the suggestion has merit, and it would obviously be possible for the ASP to choose a Prosecutor from the P-3 without giving the position to yet another white male. (With all due respect to Antonetti, the French ICTY judge rumoured to be an ICC candidate.) To mention only one possibility, the ASP could elect someone like Karim Khan QC, who is British-Pakistani. Khan or someone similar would offer the best of all worlds: the advantages of coming from the P-3 while still being able to appeal to the Global South.

The ICC’s traditional emphasis on geographic diversity is important and desirable. Given the stakes of the next election, however, now is the time for pragmatism, not principle. And pragmatism dictates choosing a Prosecutor from the P-3.