Why States Are Free to Nominate New Candidates for Prosecutor

In response to rumblings that states are less than overwhelmed by the four candidates the Committee on the Election of the Prosecutor has selected, civil society organizations are mounting a concerted effort to dissuade states from considering new candidates. The best example is a recent “Joint Civil Society Statement” signed by nine leading human-rights organizations, including Open Society Justice Institute, FIDH, Human Rights Watch, the ICTJ, and Africa Legal Aid. Here is the statement in full:

We call on ICC States Parties to stand by their commitment to a process for election of the next prosecutor that is transparent, merit-based, and free from political interference. In early 2019, after extensive debate, States Parties agreed to set up a Committee for the Election of the Prosecutor (“Committee”), authorized to identify the most qualified candidates for the position. In addition, States Parties appointed an independent expert panel (“Panel”) to assist the Committee in carrying out its mandate. According to the Terms of Reference adopted by the Assembly of States Parties’ (“Assembly”) Bureau, the process was carefully designed to yield a prosecutor selection and election process that is “structured and transparent.”

On June 30, 2020, the Committee issued its final report, including a shortlist of four candidates that it deemed most qualified. The report describes both the rigorous process undertaken by the Committee and Panel and the criteria considered to evaluate candidates. It also includes a detailed assessment of the shortlisted candidates, highlighting the strengths and weaknesses of each. Significantly, the Committee took the unprecedented step of conducting a reference check and security screening for all of the longlisted candidates. While those steps fell short of a full vetting process, we applaud the Committee’s initiative and endorse its recommendation to include a vetting provision for all future elections.

As States Parties now embark on consultations “to identify, through open and transparent consultations, a consensus candidate,” our organizations call on them to ensure the continued integrity of the election by engaging genuinely with the agreed process and with the Committee’s shortlisted candidates. We discourage nominating candidates outside of the shortlist, because candidates either, if they have previously applied, will have failed to meet the Committee’s standards or, if not, will avoid the same independent, reasoned scrutiny from the Committee.

In order for the next prosecutor to be truly qualified, they should possess the requisite legal, technical, leadership, and management skills, and their integrity and commitment to the court’s mandate should also be unimpeachable. The evaluation of applications, interviews with candidates, reference checks and security screening represent progress in ensuring a principled process.

States parties should respect the Committee’s independence and stand by the process they established to ensure the election of the most qualified individual. Failing to do so could lead to the election of a prosecutor who is unable to provide the leadership, skills and integrity that the ICC so urgently needs.

I have nothing but respect for the organizations that have signed the Statement, and I know their only desire is to ensure that states select the right Prosecutor. It would also be foolish to downplay the possibility that states will select someone more politically palatable than legally capable through what James Goldston, the Executive Director of OSJI, decried on Twitter as “under the table short cuts or back room deals.” States are, of course, first and foremost political entities.

That said, I take issue with a number of claims in the Joint Civil Society Statement.

To begin with, it is an oversimplification to say that “States Parties agreed to set up a Committee for the Election of the Prosecutor.” States seem to have generally favoured some sort of election committee: ICC records indicate that the President of the Bureau of the Assembly of States Parties (ASP) held “informal consultations” with regional groups about the election process before the Bureau created the Committee. But those records also make clear that the Terms of Reference for the Committee were drafted solely by the President, with the help of the two Vice-Presidents. Here is an except from the Bureau’s 7 February 2019 report:

The Bureau had before it a zero draft of the terms of reference for the Committee on the election of the Prosecutor (ToR), dated 31 January 2019. The President advised that it had been prepared in consultation with the two Vice Presidents, following the decision of the Bureau at its meeting on 12 December 2018. The draft was based on the ToR from the 2011 election, with a significant number of amendments. The draft also reflected the feedback received from the regional groups during the seventeenth session of the Assembly of States Parties, as well as the discussions in the Bureau in December 2018.

The reference to “feedback received from the regional groups” is a bit misleading, because states were not given a “draft of the terms of reference” during the 17th Session of the ASP. The ASP was held from 5-12 December 2018, and the 12 December 2018 Bureau report indicates that the drafting process did not start until after the ASP had ended:

On the way forward, the President proposed that discussions continue in the Bureau on the need, purpose, type of body and its composition during the month of January. With the assistance of the Secretariat and in consultation with the two Vice-Presidents, he would prepare a “roadmap” for the way forward and start a drafting exercise on the terms of reference, taking into account the Bureau discussions so far, and the informal consultations that he had held with States Parties of each regional group. He would aim to present that document for the initial consideration of the Bureau in the first week of February in New York. The Bureau agreed to proceed accordingly.

There is nothing untoward, of course, about the President drafting the terms of reference for the election committee. What happened after the “zero draft,” however, is problematic. As the 7 February 2019 report acknowledges, at least one member of the Bureau — which consists of 21 states parties — thought that the final Terms of Reference needed to be adopted by the ASP as a whole at its next session:

A view was expressed that the Committee should be established following an Assembly decision at the eighteenth session of the Assembly of States Parties.

That never happened. Instead, after the Bureau considered a revised draft of the terms of reference at its March 2019 meeting, the President prepared a final draft of those terms based on the Bureau’s March discussions. The Bureau then adopted the Terms of Reference through what is known as a “silence procedure,” as noted in the Bureau’s May 7 report. That procedure is not mentioned in the ASP’s Rules of Procedure, but it has been used by the Bureau to make decisions on a number of occasions. When the silence procedure is used, the text of a proposal is circulated to the members of the Bureau and they have 48 hours to object to its adoption. If there are no objections, the proposal is adopted.

The bottom line is this: although states might have supported creating an election committee and were consulted informally by the President of the Bureau concerning how the committee might function, they played no role in drafting or revising the Committee’s final terms of reference and were not asked to approve them. Instead, the Terms of Reference were drafted by the President and adopted solely by the Bureau, which represents only 17% of the ICC’s 123 member-states.

The Joint Civil Society Statement is also misleading insofar as it suggests that states agreed to choose a Prosecutor from the candidates selected by the Committee. Perhaps because of the limited role most states played in the Committee’s creation, the ASP Secretariat assured states as recently as two weeks ago that they have the right to nominate different candidates if they are not satisfied with the Committee’s selections:

The CEP and subsequent consultation process is supplementary to the formal procedure set out in the nomination resolution. Any State Party is entitled to submit a nomination during the formal nomination period. However, States Parties are strongly encouraged to refrain from making nominations until the process set out in the Terms of Reference has been completed. The Bureau decided on 30 June 2020 to open a formal nomination period which shall run for 12 weeks and expire on 22 September 2020 (Central European Time). The nomination period would be extended as necessary so as to allow the consultation process on a consensus candidate to attain the desired result.

Given these assurances, it is unfair to claim that states that reject the Committee’s candidates — such as Kenya — have failed to “stand by the process they established.” The process allows for precisely that.

To be clear, I am not saying it was a bad idea for the Bureau to create the Committee.  The Bureau’s intentions were good, and of course it is better to have an election process that is “structured and transparent” than one that is marked by backroom political dealmaking. But that does not mean the election process or the Committee’s work is beyond reproach.

For example, in terms of how “structured” the process was, it is worth noting that the Committee made a deliberate decision to deviate from the Terms of Reference. As it notes in its final report, the Committee subjected the 14 long-listed candidates to a vetting process that was not included in those Terms:

27. The Committee furthermore undertook the unprecedented step to include a vetting process, normally only applied to candidates nominated to non-elected positions at the Court and not foreseen in the Committee’s Terms of Reference. The Committee’s proposal to that effect was endorsed by the Assembly Presidency by letter dated May 23, 2020… The vetting process consisted inter alia of detailed reference checks, checks of publicly sourced information (including candidates’ own social media accounts), and security and criminal record checks. The Committee agreed with the Security and Safety Section of the Court that certain specific details of the process should remain confidential so as to protect future such processes against potential manipulation or evasion.

30. All 14 candidates consented to the vetting process, which was undertaken for all candidates, concurrently with the interviews, in order to inform the Committee’s decisionmaking without affecting the timeline for its report

This kind of vetting is obviously warranted in the abstract, but we should take the Committee’s comment that the 14 candidates agreed to it with a grain of salt. How could they refuse? No candidate who refused to be subjected to the Committee’s procedural innovation would have ever made the shortlist. Moreover, even if candidates did freely consent, the fact remains that the vetting was the Committee’s idea, not the Bureau’s. The Bureau did not even approve the change to the Terms of Reference. Only the three-person Presidency did.

There is also reason to be skeptical of the claim that the Committee process was fully transparent. What do we really know about the process, other than the (useful) criteria for selecting candidate that are stated in the Terms of Reference? First, all we have been told about how the Bureau chose the five members of the Committee (four of whom are men, and three of whom are white) and the five members of the Panel of Experts (much more diverse) is that they had to come from different regions and have different nationalities. I am quite sure all 10 are principled and capable, and the one member of the Panel of Experts I know personally, Charles Jalloh, is an exceptional lawyer and scholar. But the fact remains that the process of choosing the Committee and the Panel of Experts cannot plausibly be described as transparent.

Second, we have no idea who applied for the position of Prosecutor — all we know is that the overwhelming majority came from the African and WEOG groups (78%) and that more than twice as many men as women applied (63 out of 89). We don’t even know which 14 candidates made the Committee’s long-list and were interviewed by the Committee. (Nor do states.) I don’t have a problem with keeping the general pool of candidates anonymous, but I struggle to find a principled reason not to identify the 14 long-listed candidates. If you are a serious candidate for Prosecutor, you should be willing to be identified as such publicly. And even if there was a good reason for confidentiality at the long-listing stage, the process can hardly be described as transparent. States are simply being asked to trust the Committee that the four selected candidates are stronger than the other anonymous 10 — so strong, in fact, that the Committee didn’t even need to nominate the two additional candidates permitted by the Terms of Reference.

Again, I don’t doubt the good faith and hard work of the Committee (or of the Panel of Experts). But states have every right to question whether the Committee has chosen the four best candidates in light of the process’s anonymity, especially given that no candidate could make the shortlist if he or she was opposed by even one Commissioner. (Para. 16 of the Terms of Reference provides that “[t] The Committee shall establish by consensus an unranked shortlist.”) As I pointed out in my previous post, we know that the Committee rejected at least two exceptionally strong long-listed candidates: one of the most experienced and successful prosecutors in the history of international criminal law, and a QC who has vast criminal-law experience, both domestic and international, and currently heads a major UN investigative team. And, of course, the shortlist itself tells us that, in the eyes of the Committee, two of the strongest four candidates are white, three are men, and three come from the common law. (The latter despite the fact that 68 out of 89 applicants, 76%, work in systems that either solely civilian or, like Roy, mixed common/civilian.)

The inability to compare the chosen candidates to the rejected ones is also not offset by the Committee’s final report. On the contrary, the report is disappointingly cursory. The section entitled “Considerations for assessment” is precisely two paragraphs long — and one of those paragraphs explains when Committee or Panel members would recuse themselves. The “Recommendations” section is a bit longer but scarcely more illuminating, essentially containing four paragraphs that help us understand the Committee’s thought process:

37. There is no such thing as a “perfect” candidate, and a curriculum vitae tells only a part of the story. All four candidates recommended to the States Parties for further consideration have areas in which their actual, recorded experience may not be as extensive as considered desirable. For this reason, the Committee chose to conduct competency-based interviews, with a view to allowing candidates to show how they would demonstrate certain behaviours/skills, as prosecutors, as managers of the OTP and within the strategic context in which the ICC is situated.

38. The interviews themselves provided the Committee and participating Panel members with a unique opportunity to test whether the entries in the curriculum vitae corresponded to a candidate’s ability to relate that experience to the work of the OTP. The Panel in addition assessed the substance of candidates’ responses to questions from a technical standpoint, the quality of professional experiences and qualifications, as well as potential conflict situations.

39. In light of current challenges and ongoing calls for reform of the Court, its business practices and its management, the Committee also closely observed the candidates’ personal qualities, ideas and demeanour, in questions aimed inter alia at disclosing their vision of the change management leadership that States Parties have indicated the Court will require going forward.

43. All four candidates on the shortlist impressed the Committee, supported by detailed advice and assessments from the Panel of Experts, with their genuine interest in justice and the rule of law, the ICC and the cause of international criminal accountability – without fear or favour nor desire for personal advancement, beyond the wish to seek out new challenges in public service. Each of them will bring their own, unique and fresh professional perspective to the work of the Court. Likewise, all communicated clearly their appreciation for an organization and a managerial philosophy that value integrity, professionalism, teamwork, diverse and new perspectives, responsible stewardship and accountability.

The report then concludes with a one-paragraph summary of each selected candidate’s background and a few sentences about why he or she was chosen. Hardly the kind of “reasoned judgment” we would expect from the ICC’s judges in a difficult and contested case.

Let me be absolutely clear — again: I am not claiming that the Committee did a bad job or that the four shortlisted candidates would not make good Prosecutors. Each has a very impressive background, and I have no doubt they all excelled in their interviews. I take issue, though, with the Joint Civil Society Statement’s suggestion that states would somehow be betraying the Bureau’s election process if they nominated and/or elected a different candidate. To the contrary: the process has always given states the right to reject the Committee’s shortlist. And they can hardly be blamed if they avail themselves of that right, given the election process’s lack of structure and transparency.

In the end, what matters most is that states are happy with the next Prosecutor — not civil society, and certainly not academics like me. Perhaps states will look at the process, decide it was full and fair, and elect one of the shortlisted candidates. If so, great. But if states are not happy with the process, or if they are not convinced that any of the four candidates is the right choice for Prosecutor, they should not hesitate to nominate a candidate they believe would be a better choice.