The Third ICC Prosecutor: Is It the Process or the Outcome of the Process that Matters More?

[Gregory S. Gordon is Professor of Law at The Chinese University of Hong Kong Faculty of Law and formerly served as a prosecutor with the International Criminal Tribunal for Rwanda and the U.S. Department of Justice, Criminal Division.]

I have been following with interest the unfolding of the ICC prosecutor selection process and the recent OJ discussions about it between Kevin Jon Heller (and here) and Evelyn Ankumah (Executive Director, Africa Legal Aid (AFLA)) and James Goldston (Executive Director of the Open Society Justice Initiative). And I wanted to offer some observations about what has been happening and what is at stake. Let me say at the outset that I have concerns that certain stakeholders have been too myopically focused on “process” – process for the sake of process; process to the exclusion of all else. The process might look great on paper – but if it yields flawed candidates, there will be no consensus among States Parties and this will have reverberations such that the long-term viability of the Court will be in doubt. Let me explain this in greater detail by looking at the background of the selection process and the nature of the discussions between Heller and Ankumah/Goldston.  

Let us first go back to the beginning of 2019, when the Bureau of the Assembly of States Parties (ASP) drafted Terms of Reference (TOR) for the selection of the prosecutor. Per the TOR, the Bureau established a five-member Committee on the Election of the Prosecutor (CEP) as well as a five-member Expert Panel to assist the Committee in the selection process. In February, the Committee, assisted by the Panel, selected 16 candidates representing its “longlist.” Among the candidates chosen were Belgian Serge Brammertz, former ICTY and current MICT Chief Prosecutor, whom Heller has accurately described as “one of the most experienced and successful prosecutors in the history of international criminal law (ICL)” and Karim Khan, a British QC and well-respected ICL veteran who is Assistant Secretary-General of the United Nations and currently serves as the Special Adviser and Head of the UN Investigative Team for the Promotion of Accountability for Crimes Committed by Da’esh/ISIL in Iraq (UNITAD). After two candidates dropped out, all 14 candidates were interviewed by the CEP as well as security-screened and reference-checked. They all passed muster.

Nevertheless, on June 30, 2020, the CEP revealed that it had whittled down the names to a four-candidate shortlist: (1) Morris A. Anyah (Nigeria); (2) Fergal Gaynor (Ireland); (3) Susan Okalany (Uganda); and (4) Richard Roy, Canada. Although the TOR provided for up to a six-person shortlist, neither Brammertz nor Khan made the cut. Of the four finalists, only Gaynor, who is currently Reserve International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia (ECCC) has some international criminal prosecution leadership experience (however, as the term “Reserve” suggests, his current role does not necessarily entail actual hands-on leadership service – Brenda Hollis is the International Co-Prosecutor). The other three are primarily domestic criminal law practitioners, with Mr. Anyah having some ICL prosecutor experience but never in a leadership capacity. Richard Roy is Senior General Counsel with Canada’s Public Prosecution Service (and has worked on universal jurisdiction atrocity prosecutions domestically). And Ms. Okalany has been a domestic criminal prosecutor in Uganda but, for the past four years, has been serving as a Family Court judge.

In general, given the relative dearth of ICL leadership experience among those selected for the shortlist, as well as the substantial ICL leadership experience of certain longlist candidates who did not make the cut, the CEP’s choices have generated a certain amount of skepticism and controversy within the international community and among ICL practitioners, scholars and other experts. On July 13, 2020, ICC State Party Kenya sent ASP President O-Gon Kwon a letter expressing displeasure with the selection process and the shortlist of candidates.

The letter cited, and expressed support for, paragraph 33 of the Resolution ICC-ASP/1/Res.2 (as amended by resolution ICC-ASP/3 /Res.6), entitled “Procedure for the nomination and election of Judges, the Prosecutor and the Deputy Prosecutors of the International Criminal Court,” which stipulates that “every effort shall be made to elect the Prosecutor by consensus.” Such consensus, the letter added, must be achieved through “open and transparent consultations.” The letter went on to explain why the process, to that point, failed to live up to these standards and why the shortlist presented to the States Parties was unlikely to generate the desired consensus.

In support of this, the letter pointed out that: (1) The candidates presented have relatively limited managerial experience in large international institutions and do not have demonstrable diplomatic experience particularly in engagement with States; (2) given a customary preference for regional rotation, the African candidates are unlikely to be selected as the outgoing Prosecutor is African; (3) Article 42(2) of the Rome Statute provides that the Prosecutor and Deputy Prosecutor shall be of different nationalities – given that the current Deputy Prosecutor is Canadian, that would tend to exclude Mr. Roy; and (4) the Prosecutor is required to be independent and impartial in the execution of her duties and certain candidates on the shortlist have served as legal representatives of parties in active situations – thus, there are conflict of interest concerns. Based on these four points, the letter concludes that the shortlist has been “skewed in favour of a particular candidate” – viz., Mr. Gaynor.

Thus, per Kenya, the shortlist “denies States an opportunity to ‘identify, through open and transparent consultations, a consensus candidate,’” as the ASP President has requested. Kenya thus concludes that 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. Presenting States Parties with a fait accompli denies the States parties an opportunity to achieve this critically important objective.” The letter then explicitly rejects the shortlist and calls for a re-consideration of all the applicants for the position or States Parties nominating candidates who can be presented for election during the ASP meeting in December.

The Kenyan letter was a bombshell – an unprecedented and serious notice, early in the process, that the necessary consensus would not be achieved if States Parties were force-fed a circumscribed and flawed slate of candidates. And there were soon indications that other States Parties were with Kenya and were also about to voice their displeasure and willingness to consider candidates outside of the CEP shortlist.

Seemingly heading this off, a group of 10 prominent NGOs (including the Open Society Justice Institute, Human Rights Watch, the ICTJ, and Africa Legal Aid), purportedly speaking for all of “civil society,” issued a “Joint Civil Society Statement” titled “Electing the Next ICC Prosecutor: States Should Respect the Process They Established.” The statement reviewed the process set out above and concluded: “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 been informed by a reliable source that the group then persuaded the ASP to hold public “hearings,” currently scheduled for the 29th and 30th of July, ostensibly for the purpose of subjecting the four shortlisted candidates to further scrutiny. But this is a time when many diplomats and State Party representatives are on holiday. In that sense, the event seems more like a Bureau meeting than an actual hearing and it might lead one to wonder whether scheduling it was not a well-timed and adroit move to help solidify the Bureau’s backing of the CEP shortlist and quell the furor over Kenya’s letter.

In the wake of this, Heller and Ankumah/Goldston exchanged their posts here on Opinio Juris. Heller has supported Kenya’s position and called on States Parties to consider the remaining 14 candidates on the longlist and not limit themselves to the shortlist. Goldston/Ankumah have pushed back by narrowly focusing on the selection process itself. It is far more rigorous, and transparent, they say, than the previous prosecutor selection processes and its results should therefore be strictly adhered to.

Heller’s rejoinder points out that, while this process may be better than the other ones, it was still flawed, with lack of transparency at different junctures (including the process of paring the list of 14 down to 4), deviance from the TOR procedures (adding vetting when it was not called for) and lack of rigor (only one-hour interviews of the candidates for such an important post), among other problems.

My goal here is not to rehash the points regarding the process. In fact, it is the opposite – I think it is time to step back and consider the bigger picture rather than get lost in points of procedure (although it would seem that Heller has raised some excellent points). Rather, we should be asking ourselves: What is at stake here? This election will be a watershed moment in ICC history. As Ankumah/Goldston acknowledge in their recent post, the ICC “has previously suffered the consequences of poor leadership” and the “mission of this Court, and the responsibility of the Prosecutor, are too important to repeat that history.”

In particular, there have been grave concerns regarding the period of the first Prosecutor. And there have been setbacks in cases during the term of the second Prosecutor that relate to decisions and priorities made by the first Prosecutor. This has arguably put the OTP in a downward spiral and even led to an independent external review process – the seriousness of the problems cannot be overstated.

If we get too caught up in process considerations, then we will lose sight of what really counts here, substance – in other words, the outcome of the selection process; the destination, not the journey. The outcome must be such that the OTP’s new leader is capable of turning around the situation, regardless of the “process” responsible for how that person was selected.

And this will require consensus support from States Parties. By now, it seems a stretch to say that there will be consensus with the current slate of four candidates – Kenya’s conclusion, apparently shared by many, that the deck is stacked in favor of one candidate is structurally sound – regional rotation and dual-prosecutor rules will not go away.

And reference here to State concerns is based not only on what we have seen so far in the blogosphere but also via grapevine rumblings among various stakeholders in the international community. This is a serious factor that one cannot ignore with a tunnel-vision focus on the quality of the process. States Parties care more about the quality of the candidates from which they have to choose than the quality of the process that produced them. A good process yielding bad candidates helps no one. And if the process does not produce consensus – the kind of consensus needed to back a Prosecutor who can turn things around – then, once again, the “quality” of the process will be entirely beside the point.

It cannot be stressed enough how critical this decision will be to the Court’s future survival, let alone its future success. By the time the third Prosecutor finishes her nine-year term, the ICC will have been going about its business for nearly thirty years. It can course-correct now, seventeen years in. But by 2030, it may very well be too late.

So what makes sense at this point? Perhaps there is a compromise position that can be taken. Instead of simply allowing States Parties to offer any candidate they want, why not pay partial heed to the process? Recall that candidates on the longlist have already had reference and security checks and they all passed. States Parties may simply prefer to choose among the longlist candidates. The ASP received a multitude of applications. Narrowing them down to 16 was already a significant portion of the process that States Parties can still respect.

If States are concerned that three of the four candidates on the shortlist are not electable (because of the rotation custom and same-nationality rules, etc.), then does it really matter how much better this pre-election process was than the previous ones? Responsible States Parties cannot abdicate their fundamental responsibility to ensure proper leadership of the ICC because of a process that has already been severely criticized.

What we need now is not “hearings” for four candidates, three of whom are unelectable; rather we need consideration of a more inclusive and inspiring slate of candidates. Allowing consideration of the longlist takes care of that and respects the process in a way that makes sense. Most importantly, though, it also gives us the best chance we have of putting the ICC back on track and, for years to come, making serious inroads against the culture of impunity. We can still get this right. Let us do it now before it is too late.