The Process of Electing the Next ICC Prosecutor Should be Opened Up

[Gunnar M. Ekelove-Slydal has been Deputy Secretary General of the Norwegian Helsinki Committee since 1997. He is an adjunct lecturer at the University of Southeast-Norway.]

The process to elect the third Prosecutor of the International Criminal Court (ICC) has run into difficulties. The Election Committee’s shortlist of four candidates to the top job has been met by many States Parties and other stakeholders by great surprise and criticism. While some academics and states (in particular from the African Group) have argued that we should instead focus on candidates from the unpublished longlist of 14 and make that list public (for those candidates who do not object), a group of civil society organisations maintain that “states should respect the process they established” and elect one of the four shortlisted candidates.

On 29-30 July 2020, online hearings with the four candidates took place, including with some questioning by civil society organizations (recordings available here and here). The candidates were asked a number of important questions related to the situation of the ICC Office of the Prosecutor. They displayed different levels of apprehension of its problems and how to solve them. No doubt, the candidates are qualified and thoughtful lawyers, although some of them have limited, if any, relevant international experience.

But the main problem with the shortlist may not relate to the qualifications and experience of the candidates. Rather, three of the four cannot be elected without violating either the custom of regional rotation (Mr. Morris A. Anyah and Mrs. Susan Okalany are both African as is the current ICC Prosecutor) or ICC Statute Article 42(2) which provides that the Prosecutor and the Deputy Prosecutor cannot have the same nationality, which excludes Mr. Richard Roy who is Canadian. That leaves Mr. Fergal Gaynor as the only electable candidate, a point made by Kenya (and the African Group) in a letter of 13 July 2020.

It follows that none of the four candidates will be elected by consensus by the ICC States Parties, in contravention of the Assembly of State Parties’ resolution that “every effort shall be made to elect the Prosecutor by consensus” (paragraph 29).

The purpose of this post is not to argue for or against candidates, but to challenge both States Parties, civil society organizations and other stakeholders to reflect carefully on the most important questions at hand. The current disagreement should not obfuscate the goal of the process: to elect in December 2020, by consensus among the ICC States Parties, a highly competent and experienced prosecutor, who can significantly improve the situation of the Office and the Court.

As has been stressed by several who have written on the election process, it’s outcome is crucial for the ICC to become a truly respected and consequential international institution. There should be no doubt that the situation of the Court is precarious. Several internal and external factors obstruct its successful performance. Among the most important are poor quality and lack of effectiveness of investigations and prosecutions, which have resulted in only four convictions and several cases collapsing. There is also lack of cooperation with the Court by States, and even threats of sanctions by the United States and Israel against ICC employees.

If you add to that integrity issues that have undermined the Court’s authority, and widespread disappointment in victim communities and civil society organizations in situation countries caused by lack of progress in investigations or preliminary examinations, what emerges is a picture of an institution that acutely needs enhanced leadership.

I take the view that the sum of these (and other) challenges creates the need for an extraordinarily skilled and experienced prosecutor. He or she should bring authority and respect from relevant stakeholders to the Office of the Prosecutor and the Court as a whole. It is true that a well-functioning and respected institution can manage well with a less experienced leader who needs time to be fully up to the tasks and learn how to best perform duties. The ICC is not in such a favourable situation. The third Prosecutor must perform well from day one.

There seems to be overall agreement among States Parties, academics and civil society on this problem description and the need for an outstanding third Prosecutor who can turns things around. But there is disagreement on whether the shortlist represents a good starting point for electing that Prosecutor.

In my view, the ICC Assembly of States Parties must pay heed to its own resolution and make every effort to build consensus around a suitable candidate. Giving up on consensus should not be an option at this stage. The Court can hardly afford fragmented support behind the third Prosecutor.

It is true that the selection process has been “the most transparent and rigorous in the ICC’s history”, as Evelyn Ankumah and James Goldston argue. But we should not overlook the strength of the arguments presented by Professors Kevin Jon Heller and Gregory S. Gordon. According to Professor Heller, the process was still “far less transparent than advertised, particularly concerning how the [Election] Committee narrowed the long-list of 14 candidates to the shortlist of four”.

Professor Gordon maintains that, regardless of the merits of the process itself, what matters more is its actual outcome: “If States are concerned that three of the four candidates on the shortlist are not electable (…), 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”.

Both professors point to a solution that “maintain the basic integrity of the process”, which is to open up the longlist of 14 candidates for consideration by the States Parties. None of these candidates have been excluded as “result of the vetting process”.

I support this approach. The risks, if any, are minor when compared with continuing the current process with the four shortlisted candidates. Should the next Prosecutor not enjoy the backing of all (or an overwhelming majority of) the States Parties, his or her ability to elevate the legitimacy and moral authority of the Court will be severely undermined.

Civil society organizations are playing an unprecedented role in this ICC election process. In other international organisations (some of which face similarly elusive consensus), civil society is much less involved. The ICC situation is positive – it could perhaps represent a model. But it also brings responsibility for civil society organizations to evaluate their role. We need to take a step back and reflect carefully on the wider picture.

The traditional approach of human rights organizations is to function as watchdogs that challenge states with regard to their decisions and practices. When organizations become integrated into processes that directly lead to decision-making by states, their watchdog function may be weakened. Some may argue that the benefits outweigh that risk – after all, civil society organizations can take credit for many of the successes of international criminal justice. But we must pay very careful attention to the way this role increases responsibility and need for self-reflection on the part of influential organizations.

At this stage of the process, we, the representatives of civil society organizations, should revisit the overall goal of the election process and the need for States Parties to have a group of eminent and electable candidates to choose from. Confining that group to the 14 vetted candidates that the Election Committee, assisted by its Panel of Experts, selected seems to me to be a reasonable way forward.

Much has been said about the desired profile of the third ICC Prosecutor. As no one person is equally strong with respect to all requirements, we should consider three questions.

First, should priority be given to candidates who are good at directing, recruiting top advisors, and managing a complex Office, over candidates who have proved themselves in the courtroom? I think there is a strong case for such prioritization. The third Prosecutor will only be able to turn things around if he or she is able to form a winning team. As has been said by many, the Office suffered an exodus of highly qualified staff during the first years of Mr. Luis Moreno-Ocampo’s tenure as first Prosecutor, as well as many unfortunate practices by him. The consequences are still felt today. They will not go away through the report of the Independent Expert Review alone. Improving the performance of the Office is therefore not only about having a new, highly qualified Prosecutor in place. The Court needs a third Prosecutor who is able and willing to invest in recruiting and putting together investigative and prosecutorial teams and leadership that can get the job done significantly better than in the past.

Second, since several problems of the Office stem from states not being willing to cooperate fully with the ICC, the next Prosecutor should be able to persuade and inspire states to cooperate. Professor William Schabas is right that Robert Jackson, Richard Goldstone, and Louise Arbour were great prosecutors “because of an impressive array of abilities including a seemingly innate understanding of the political realities of their task”. Should priority be given to a combination of recognised high professional and personal integrity and strong diplomatic and communicative skills?

Third, before events overtake the process civil society actors have invested so much in, should we not, in upholding the integrity of the process, urge that the longlist of 14 candidates be released to States Parties (excluding candidates who do not consent), and initiate public hearings for additional candidates from that list who may garner consensus? Is there perhaps a need for some of the States Parties that contribute the most to the Court’s budget and authority to take responsibility and lead such a process?

Asking these questions, with the goal of strengthening and opening up the search for the best candidate, is our duty as informed observers of the ICC. As civil society actors, we have been given a role beyond mere observers. We are players in this election process, with the ability to influence the outcome of what may become the most important international justice election this decade.

Let us reflect on that.