Four Thoughts on the Election for ICC Prosecutor (Updated)

I just had the pleasure of a sharp exchange on Twitter with my dear friend Mark Kersten, one of the most insightful commentators on the ICC. The exchange was motivated by the ASP making it “officially official” (Mark’s nicely turned phrase) that the process for electing the next Prosecutor will be opened up to include (at a minimum) any longlisted candidate who still wants to be considered for the position, because states have not been able to reach consensus on any of the four shortlisted candidates.

I have four points I want to make about this latest development. First, it is critically important to acknowledge that states have always been free to reject the Committee to Elect the Prosecutor’s shortlisted candidates and nominate new ones — longlisted or otherwise. I wrote extensively about that issue here, so I will simply quote — again — what the ASP Secretariat told states (not for the first time) on July 6 about the CEP process (my emphasis):

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.

Differently put: rejecting the CEP’s shortlisted candidates is not a deviation from the process states agreed to. It is part of the process. I was not privy to the ASP Bureau’s consultation with states, but I strongly doubt states would have agreed to the process if they hadn’t been promised the right to nominate new candidates. So although I can understand commentators and NGOs being disappointed that (some) states reject the CEP’s shortlist, it is inaccurate and unfair to accuse those dissenting states of somehow betraying the process by doing so.

Second, it is equally important not to conflate two very different “advisory” functions: shortlisting candidates and vetting candidates for the high moral character the Rome Statute requires. Vetting is a relatively mechanical process involving background checks, non-candidate-chosen reference letters, and — most importantly — a robust process for considering allegations of sexual harassment and other forms of workplace harassment. Shortlisting is a much more subjective inquiry, one that requires considering what qualities the “ideal” Prosecutor must possess, balancing desirable qualities against each other, assessing how well very different candidates fit the role, etc.

There is no reason the same advisory body couldn’t both shortlist and adequately vet candidates. But they are not the same function — and as the CEP openly acknowledged, they were simply unable to adequately vet the candidates on the longlist:

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, and that not all national criminal records bureaus contacted by the vetting officers responded to inquiries…

32. The Committee recommends, in this context, that future processes for the election of candidates, including candidates nominated for a position by States Parties, include a provision for the vetting of candidates ab initio, with clearly outlined parameters and modalities as well as an indication at which point vetting would be triggered.

I am not opposed to having an advisory body both vet and shortlist Prosecutor candidates. But if NGOs and commentators are going to falsely accuse states that reject the shortlist of betraying “the process,” it would be better to abolish the CEP entirely and replace it with a body whose only function is to vet candidates that states nominate. That body would conduct the kind of vetting that NGOs have been rightly demanding and report its findings back to the ASP. I would even be okay with the vetting body being given veto power over candidates, because no candidate should be permitted to stand who, in the eyes of an expert panel, doesn’t possess the requisite high moral character. (Though I’m not sure states would agree regarding the veto.)

Third, either we take consensus seriously or we don’t. On Twitter, Mark described my claim that states rejected the CEP process as “misleading and factually wrong,” because in fact only “[p]articular ones did.” He is absolutely right that we are taking about some states, not all or even many — though neither he nor I knows exactly how many states have rejected the four shortlisted candidates. But if consensus is so important, as Art. 112(7) of the Rome Statute itself suggests, then it should not matter how many or how few states reject the CEP process. Even one state should be enough to open up the process to new candidates. And if the prospect of one or a few states “derailing” the (advisory) CEP process is unpalatable, there is a simple solution: stop trying to obtain consensus and put the shortlisted candidates to a vote. Electing a shortlisted candidate would require only an absolute majority of the ASP — 62 states. If no shortlisted candidate could muster the requisite majority of present states, it is difficult to see why it would be wrong to open the process up to longlisted candidates (or even to new ones, though I’ve said before that’s a bad idea).

Fourth, and finally, I would take issue with one aspect of the ASP Bureau’s “way forward” for the Prosecutor election. As a number of commentators have noted, at least some states want to see the CEP’s notes on the longlisted candidates who did not make the shortlist. The Bureau rejects that idea, intending instead to ask the CEP to prepare new assessments of the “rejected” longlisted candidates:

The curriculum vitae and letter of motivation of the candidates added on the expanded list will be circulated to all States Parties. In addition, the President will request the CEP to prepare an appraisal of each of the additional candidates, as was done for those on the shortlist. These appraisals will be circulated to all States Parties in conjunction with the candidates’ curriculum vitae and letter of motivation. The original appraisal of the four shortlisted candidates will also be circulated at the same time. The CEP will share its appraisal with each additional candidate before he/she is asked to give his/her final consent to be added to the expanded list.

With respect to the Bureau, this is not adequate. States are absolutely right to want the CEP’s original notes, which were made when it was not yet clear whom the Committee would shortlist. Those notes will reflect the CEP’s genuine and spontaneous appraisal of the longlisted candidates. New appraisals will not. This is not a criticism of the CEP: I have no doubt that the Committee will do its best not to let its shortlisting decisions affect how it now assesses the longlisted candidates. But confirmation bias is a very real and very powerful phenomenon. So no matter how fair and honest the CEP will be — and I have no worries on either front — new appraisals will not be fair to the longlisted candidates. States need the CEP’s original notes.

UPDATE: I botched the requirements for electing the Prosecutor. I have updated the post accordingly.