In Defense of Process: Why States Should Not Nominate New Candidates for ICC Prosecutor

[Evelyn Ankumah is the Executive Director of Africa Legal Aid (AFLA). James Goldston is the Executive Director of the Open Society Justice Initiative.]

Next Thursday and Friday mark an important step in the process to elect a new ICC prosecutor. After six months of hard work by the Committee for the Election of the Prosecutor (CEP) and amidst growing curiosity, states and civil society will have the opportunity to speak for the first time with the four shortlisted candidates: Morris A. Anyah (Nigeria), Fergal Gaynor (Ireland), Susan Okalany (Uganda), and Richard Roy (Canada).

There has been much speculation and some surprise at the Committee’s shortlist. The four individuals – although each possessing years of experience as international and domestic criminal law practitioners, advocates, and judges – are less well known to many in the international justice community. Some in the international justice field had expected – and others hoped for – more recognizable names to appear. Some states parties have also reacted with dismay, with Kenya going so far as to publicly question the results of the CEP’s work.

As the heads of two of the 30 organizations that have publicly urged states to stand by a transparent and merit-based election process, we think states and ICC supporters alike should take the Committee’s work seriously, and ensure that the hearings next week are the first step in a genuine and constructive effort at consensus-building by states parties. Why is this so important?

For one, the selection process to date has been the most transparent and rigorous in the ICC’s history, with a number of improvements over previous elections. For instance, the selection committee was, for the first time, advised by an independent panel of experts in the field – representing, like the CEP, all five of the ICC’s geographic regions — each of whom were closely involved in the review of the 89 initial applications and all subsequent interviews with the 14 longlisted individuals. This innovation set a new standard in prioritizing merit over politics. It’s one that all international bodies charged with the responsibility of staffing judicial institutions should follow.

Equally important was the Committee’s decision, for the first time, to subject candidates to reference checks and security screenings, in order to independently verify that all possessed the “high moral character” that the Rome Statute requires, including a history free from sexual misconduct. This “unprecedented step,” as the CEP noted, is routinely applied to nominees to non-elected positions at the ICC but has been sadly overlooked for those elected to its top positions, with troubling results for the institution as a whole. While those measures fell short of a full vetting process, the Committee wisely recommended such a provision for all future elections (para 32).  It further noted that the vetting that was undertaken yielded a shortlist “of the most highly qualified candidates, whose candidac[ies] are likely to withstand the reputational scrutiny that the subsequent public process will bring with it” (para 31).    

Moreover, the CEP’s evaluation of the applications appears to have been particularly thoughtful. Its report clearly details which criteria were considered for assessment: the qualifications and experiences set out in candidates’ applications; their performance in the interview; and the outcome of the vetting process and reference check (para 33). The report also explained that experience, by itself, was not the most important criterion; rather, it was competency. How, the Committee asked, did the candidates “demonstrate certain behaviours/skills” not merely by virtue of their resume, but “within the strategic context in which the ICC is situated” (para 37)?  As Ambassador Sabine Nolke, the committee’s chair, later put it, “The fact that you’ve done something in the past doesn’t mean you’re the right person to do it again.” At the same time, the report is also refreshingly candid, acknowledging that “[t]here is no such thing as a ‘perfect candidate’” and that each of the four “have areas in which their actual, recorded experience may not be as extensive as considered desirable” (para 37).

The test of the Committee’s work, then, is not whether its work, as some have suggested, was “beyond reproach,” but rather whether it made a good faith effort to carry out its mandate and secured an effective outcome within the available time and resource constraints. Our view is that the Committee, to its credit, did just that. Some critics of the list seem troubled less by the process than by the fact that their preferred candidates did not advance.

Finally, we should all be wary of any effort to set aside a process that was carefully negotiated by ICC states parties through its Bureau (the elected body that assists the Assembly of States Parties in the discharge of responsibilities in between its annual sessions). Those consultations involved painstaking conversations among diplomatic representatives in The Hague and New York. As we can attest, they also involved conversations with various civil society organizations. The process that the Bureau established was as open and inclusive as international bureaucracies allow. It should provide the necessary confidence to make consensus possible. Nominating new candidates at the eleventh hour – even if technically permissible – risks evading the same level of diligence and scrutiny applied to the shortlisted four. 

Next week‘s hearings are a start. They offer an opportunity to begin to publicly test whether the finalists bring the necessary range of leadership skills, legal expertise, management experience and political acumen, as well as integrity and moral character.

The ICC has previously suffered the consequences of poor leadership produced by short-circuit decision-making and back-room deals. The mission of this Court, and the responsibility of the Prosecutor, are too important to repeat that history. States should ensure that the selection process they approved meets this critical moment.