The Coming Kerfuffle over the Next ICC Prosecutor

And so it begins. According to a leading Kenyan paper, Kenya has rejected the four candidates identified by the ICC’s Committee on the Election of the Prosecutor:

“Kenya anticipated that the Committee would present a shortlist of qualified candidates with an equal chance of being elected. The current shortlist does not meet this expectation and appears skewed in favour of a particular candidate,” Ambassador Lawrence Lenayapa said.

In a letter dated July 13 to the ICC, Lenayapa said the shortlist denies States an opportunity to “identify, through open and transparent consultations, a consensus candidate”.

“At a time when the Court is faced with many difficulties, We need to work together to elect a candidate who will strengthen and build confidence in the Office of the Prosecutor,” he said.

Lenayapa said presenting States Parties with a fait accompli denies the States parties an opportunity to achieve the objective.

“Kenya therefore rejects the shortlist contained in the Report of the Committee for a re-consideration…,” he said.

He argues that the candidates presented have relatively limited managerial experience in large international institutions and do not have demonstrable diplomatic experience particularly in engagement with States.

“Taking into account that the former and outgoing prosecutors have been from the GRULAC and African Group, it is unlikely that States Parties would build consensus around a candidate from these Regions, thus diminishing the chances of the African candidates,” he said.

Article 42(2) of the Rome Statute provides that the Prosecutor and Deputy Prosecutor shall be of different nationalities.

“The current Deputy Prosecutor is a Canadian. In these circumstances, the election of a candidate of the same nationality would be contrary to an express provision of the Rome Statute,” he said.

Mark Kersten, who always has his ear to the ground regarding African politics, says on Twitter that “other states will follow Kenya in the coming days.”

It is not completely clear from the article which candidate Kenya believes the Committee favours, but it seems to be Fergal Gaynor, who has the most experience as an international prosecutor (he served in that position at the ICTY, the ICTR, and the ECCC) and as the manager of a large international organisation (he currently heads two investigative teams, in Myanmar and Syria, for the Commission for International Justice and Accountability). Lenayapa’s comments suggest that Kenya thinks neither African candidate is viable, given that Fatou Bensouda is from an African country. And he clearly believes that Roy’s election is precluded by the Rome Statute. (I think that’s wrong — as I’ve suggested on Twitter, the ASP could elect Roy if the current Deputy Prosecutor, James Stewart, was willing to resign.)

Let me start by saying that I think any of the four candidates would make a fine Prosecutor. My prognostication that the Committee would undervalue criminal-law experience turned out to be wrong, because all four are first and foremost criminal lawyers. And although two (Okalany and Roy) have no practical experience at ICTs, I think such experience is vastly overrated: I’d take a great domestic criminal lawyer over a mediocre international one any day.

Kenya’s concern about managerial and diplomatic experience is not without merit, though, and Gaynor clearly stands above the other candidates in both respects. (And before someone twists my words on Twitter again, I completely agree that Okalany, as a woman in a patriarchal profession, would have had less opportunity than many men to obtain managerial experience.) So insofar as states look for a candidate with a “classic” international prosecutor profile — experience at ICTs, manager of large international organisations, familiarity with the politics of international criminal justice — Lenayapa is right that Gaynor seems like the obvious choice.

I respect the Committee for choosing the four candidates it thought were best regardless of whether they fit the classic Prosecutor profile, and I don’t believe that profile is necessarily the most desirable one. But I do fault the Committee for selecting only four candidates even though its Terms of Reference permitted it to select up to six. I doubt — contra Lenayapa — that the Committee is trying to steer states toward Gaynor. But I do think it is trying to steer states away from more obvious choices like Serge Brammertz (the former chief prosecutor of the ICTY) and Karim Khan QC (the current head of UNITAD), both of whom were on the Committee’s long list. (I would have said the same about the amazing Michelle Jarvis, the deputy head of the IIIM in Syria and a former deputy prosecutor at the ICTY, but despite early rumours to the contrary she was not a candidate.) It is difficult to argue that Brammertz and Khan are less qualified than the four candidates selected by the Committee, so it seems quite likely that the Committee avoided putting forward two additional candidates because it believed including someone like Brammertz or Khan would doom the chances of the other four.

If Mark Kersten is right and Kenya’s response to the list does prove to be the tip of the iceberg, the four candidates might struggle anyway. Indeed, if I were a betting man (and I’m not), I would wager that the ASP will seriously consider candidates not on the Committee’s list — perhaps Brammertz, perhaps Khan, perhaps someone whose name hasn’t already been bandied about. And I doubt very strongly that the next Prosecutor, whoever he or she is, will be elected by consensus.

Stay tuned…