More on Why — and How — States Should Open Up the Nomination Process

I greatly appreciate Evelyn Ankumah (Africa Legal Aid) and James Goldston (OSJI) taking the time to respond to my post about the upcoming election for ICC Prosecutor. Unfortunately, their post barely addresses any of the concerns I raised about the process the Committee used to shortlist four candidates. Instead, it simply reiterates the view put forth in the Joint Civil Society Statement that “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.”

I stand by my argument that the process was far less transparent than advertised, particularly concerning how the Committee narrowed the long-list of 14 candidates to the shortlist of four. We don’t even know what the “series of predetermined questions” were (see para. 22 of the Committee’s final report) that the Committee and Panel of Experts used to interview the long-listed candidates. There is no plausible reason for those questions to be confidential, as opposed to the answers — yet they are.

In this post, I want to challenge the idea that the selection process was particularly rigorous. I will then suggest a way forward for states that are not (yet) convinced by the shortlist but want to maintain the basic integrity of the process.

Let’s being with the supposed rigour of the interview. If you read the Committee’s final report, you’d think that candidates were subjected to a long, grueling interrogation concerning their desire and competence to be Prosecutor:

33. In the interview, candidates were expected to respond substantively and clearly to the competency-based questions posed by the Committee and Panel, so as to demonstrate the expected competencies and to provide the Committee and Panel members with an appreciation of their understanding and vision for the work of the Office of the Prosecutor and the Court, as well as their suitability for the role by virtue of personality, clarity of communication, character, and overall demeanour.

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.

Because of limitations on its vetting power, the Committee also (para. 26) “included a line of questions on the topic of workplace or sexual harassment in the interviews, observing both the candidates’ substantive answers and demeanour in response.”

This all sounds great — until you learn that, in fact, each interview was one hour long. Let me repeat that: each candidate for Prosecutor, a position the chosen person will hold for the next nine years, was one hour long. As Megan Fairlie wryly pointed out on Twitter, “[t]o get a tenure track job at a law school, you interview for more than a day.” One hour also pales in comparison to how much time and effort is required to get a job working for the ICC Prosecutor, which normally involves multiple rounds of lengthy interviews and often extensive writing assignments.

Given the brevity of the interviews, it is impossible to credit the Committee’s rosy assertion that they provided “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.” Indeed, “test” is not even the right word, as I have it on good authority that the Committee and Panel did not ask the candidates any follow-up questions — whether for lack of time or lack of interest.

The interviews, then, were anything but rigorous. Which makes the Committee’s insistence that they were in some respects more important than the candidates’ CVs deeply troubling:

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.

An hour of pre-determined questions with no follow-up could not have addressed, much less explored in depth, significant gaps in candidates’ “actual, recorded experience.” More importantly, though, how could past experience not be the most important factor in choosing the next Prosecutor? What better predictor of future success is there than past success? As I have said before, I don’t believe the next Prosecutor of the ICC needs to have been a chief prosecutor at an international criminal tribunal (like Brammertz) or the head of a major UN investigation (like Khan). But that does not mean experience with international organizations and international diplomacy is irrelevant — or that a proven track record of managing large numbers of people and dealing with a complex budget doesn’t matter. There may be no “perfect” candidate for Prosecutor, but there are different degrees of imperfection.

I am also skeptical — with all due respect to them — that the Commissioners had the ability to assess whether a candidate possessed the skills necessary to be Prosecutor. As this incredibly helpful IJ Monitor article by Taegin Reisman indicates, though each is exceptionally accomplished, not a single member of the Committee has any practical experience in international criminal law. The Panel of Experts is a different story — but as the final report makes clear (para. 23), the Panel simply provided the Committee with a report on the 14 long-listed candidates; the experts were not involved in choosing the four finalists. If the Committee simply deferred to the Panel’s assessment of who would make a good Prosecutor, fair enough. But we have no idea whether that was the case.

The Committee could have compensated for its own lack of practical experience by seeking out a diverse set of references for each candidate as part of the vetting process. But that did not happen. Instead, disappointingly, the Committee merely asked the candidates to submit their own references, even though the Committee was fully aware that such references would be self-serving:

31. The Committee is aware that a vetting process set in motion ex post facto and with limited scope, cannot lay claim to comprehensiveness, nor will it offer all desirable guarantees. In particular, it is to be noted here that references offered by a candidate will likely be inclined to respond only with favourable assessments.

The Committee is not to blame for the limits on its vetting process; a more robust system should have been included in the Terms of Reference. The fact remains, however, that hand-picked references are next to useless. To return to Megan Fairlie’s academia analogy, universities don’t award tenure or give out chairs  on the basis of references provided by the candidate’s mentors; it is standard procedure to reach out to well-respected individuals in the field who know the candidate only through his or her work. That is the kind of reference the Committee needed to obtain in order to create its shortlist.

The Committee’s selection process, in short, was neither particularly transparent nor particularly rigorous. So there is simply no reason for states to be confident that the Committee chose the best four candidates out of the long-listed 14.

So what should states do now? Here I agree, at least in part, with Ankumah and Goldston: “[n]ominating new candidates at the eleventh hour – even if technically permissible – risks evading the same level of diligence and scrutiny applied to the shortlisted four.” It would probably be wise for states to avoid nominating candidates who either did not apply for the Prosecutor position at all or who applied but did not even make the long-list. Those candidates would not have undergone any vetting — even the inadequate vetting carried out by the Committee. But there is no reason why states should hesitate to nominate one of the other 10 candidates on the long-list, because they underwent the same vetting as the shortlisted four:

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.

I have it on good authority that none of the 14 candidates on the long-list were excluded from consideration as a result of the vetting process. In other words, the Committee did not reject any of the candidates on the ground that they lacked the “high moral character” the Rome Statute requires, whether because of workplace harassment, sexual harassment, or any other morals issue. The Committee’s decision was thus based solely on the candidates’ CVs and the answers they provided to the pre-determined series of questions during their one-hour interview.

There is, of course, a practical problem with my suggestion for opening up the election process: states do not know who was on the long-list, and they do not have access to the Panel of Experts’ report on the 14 candidates. But that is easily solved: the Bureau of the ASP can simply modify the Terms of Reference to permit states to read the Panel of Experts’ report. States can then decide for themselves whether the Committee chose the four strongest candidates — so strong, in fact, that the Committee didn’t even need to nominate the six permitted by the Terms of Reference. If any individual candidate on the long-list has a problem with making his or her identity and/or assessment by the Panel known to states, the Bureau could simply redact that part of the Panel of Experts’ report.

To be sure, opening up the selection process in this manner could lead to states nominating candidates who — to quote the Joint Civil Society Statement — “will have failed to meet the Committee’s standards.” Nevertheless, for all the reasons mentioned in this post and the previous one, that is a risk worth taking. After all, as I have said before, the future of the ICC depends on the willingness of states to cooperate with the next Prosecutor — not on whether he or she satisfies the demands of academics like me or NGOs like the ones who signed the Joint Civil Society Statement. If states are not confident that the right Prosecutor has been elected, the Court’s next nine years will be very long indeed.