The Perils of Reducing International Lawyers to Their Nationality: A Response to Vamos-Goldman

Andras Vamos-Goldman has a long post today at Just Security criticising the UK’s recent adoption of the Overseas Operations (Service Personnel and Veterans) Bill, which will make it considerably more difficult for British courts to prosecute soldiers who commit international crimes overseas or to hear civil actions brought by the victims of such crimes. He also decries in general the lack of commitment a number of powerful democracies have shown to international criminal justice, singling out for special opprobrium — not surprisingly — the Trump administration’s sanctions against ICC officials like Fatou Bensouda.

I wholeheartedly agree with Vamos-Goldman’s criticisms of the UK’s and the US’s recent actions. But he makes two claims in his post that I find deeply problematic. The first concerns the recent election of Karim Khan to be the third Prosecutor of the ICC:

For all those in the international community concerned with international justice, not noticing the passage of this Bill on the day of the 2020 US presidential elections is one thing. But there can be no excuse for not knowing, understanding, or caring about its negative implications when the same Boris Johnson government had a national competing for perhaps the most important and visible international criminal justice position in the world: Prosecutor of the International Criminal Court (ICC). UK Barrister Karim Khan has now been elected. The result is that the states parties to the ICC have rewarded a country that is undermining international justice. And some of the other players in the international community let it happen, without raising their voices.

There is no question the UK is pleased the next Prosecutor will be British. But I reject the idea that the international community should have insisted the Prosecutor not be the national of a state that has recently undermined international criminal justice, lest that state be “rewarded” for its actions.

One problem with that idea is particularly obvious: it has no logical stopping point. If Khan should not be elected Prosecutor because he’s British, should all British lawyers be estopped from being elected or appointed to important positions in international organizations by virtue of their tainted nationality? What about the amazing Dapo Akande’s current nomination to the International Law Commission? What if the UK nominated Philippe Sands QC to the ICJ? Or if Amal Clooney was asked to serve on, say, the Human Rights Council? What about Leslie Thomas QC or Shaheed Fatima QC? Should their international careers be nipped in the bud, in order to avoid “rewarding” the UK? If not, how are they any different than Khan, whose only significant legal work for the British government involved prosecuting murder, rape, and offences against children as a Crown Prosecutor and Senior Crown Prosecutor — the kind of government practice NGOs normally approve of?

Moreover, as Vamos-Goldman acknowledges, the UK is hardly the only state undermining international criminal justice. Consider some of the other states that had a national under serious consideration for Prosecutor. Spain used to be a champion of universal jurisdiction, but no longer — the Spanish parliament has made it effectively impossible to prosecute an extraterritorial international crime that has no connection to Spain. (One conviction in 20 years, as of early 2019.) Should the international community have “raised their voices” in opposition to Carlos Castresana as a result? As for the Canadians, Robert Petit and Richard Roy, the Trudeau government has a deeply disappointing record when it comes to international criminal justice, most recently refusing to endorse the Canadian parliament’s decision to recognize China’s genocide of the Uyghur. What about Morris Anyah? International crimes committed by the Security Forces of his state of nationality, Nigeria, will soon (along with Boko Haram’s crimes) be the subject of a formal ICC investigation. And Susan Okalany? Her state, Uganda, is already under investigation. If Khan should not be Prosecutor because the UK recently made it more difficult to prosecute international crimes, surely it would have been unjustifiable for the international community to reward Nigeria or Uganda for actually committing international crimes by electing one of their nationals? (And yes, I’m fully aware British soldiers have committed international crimes, as well.)

And then, of course, there is the US — the worst offender of all. If the position of ICC Prosecutor is too important to go to the national of a problematic state, surely the international community should immediately demand that Nicholas Koumjian resign as Head of the Independent Investigative Mechanism for Myanmar (IIMM). And states should positively have conniptions at the idea of someone like Stephen Rapp or Beth van Schaack ever being appointed to head up an investigation of international crimes in Syria.

I imagine that most readers are currently shaking their head and thinking, “but those people are all amazing!” Indeed they are — which is precisely the point. There is simply no justification for opposing a person’s appointment to an important international position on the basis of his or her nationality. Individuals do not serve as ICC Prosecutor or Head of the IIMM in a national capacity, unlike (say) an Ambassador to the UN. They serve in an individual capacity, beholden only to their own conscience, and they should be judged accordingly, on their own qualities. To do otherwise — to oppose a person simply because he or she is the “wrong” nationality — is simply another form of collective punishment, deeming an individual responsible for his or her government’s sins. And, even worse, doing so in the context of organizations like the ICC will often be a particularly ironic form of collective punishment, given that many, if not most, of the people thereby disqualified will have spent their legal careers opposing the policies of their government.

Which brings me to the second problem I have with Vamos-Goldman’s post — his description of how Khan was elected Prosecutor:

Unfortunately, this Bill is not a single, isolated lapse by just one member of the international community. Nor is the mess that the ICC Assembly of State Parties (ASP) made of the ICC Prosecutor’s selection process an aberration in how senior international public servants are elected. This process already tends to be less about merits and qualifications and more a “beauty-contest” between states, where the value of each vote is traded like cryptocurrency within the political context of other international elections and issues. The months of confusing, opaque series of processes certainly did not make it easier for an important piece of information, like the UK’s Overseas Operations Bill, to be properly taken into consideration.

It is important to read this statement in light of the previous one. On the one hand, Vamos-Goldman decries the election process as “less about merits and qualifications and more a ‘beauty contest’ between states.” On the other, he claims that states should not have elected Khan simply because of his nationality — a criterion that is literally the polar opposite of emphasizing “merits and qualifications.” The contradiction, and Vamos-Goldman’s seeming indifference to it, is striking.

Was Khan the “best” candidate for Prosecutor, judged solely in terms of “merits and qualifications”? I certainly think so — as I openly acknowledged throughout the electoral process — and I’m very happy that 72 states agreed with me. But there were other very strong candidates, and it was perfectly reasonable for some states (and NGOs) to prefer Gaynor or Castresana or Lo Voi (or any of the others). There is no perfect resume for Prosecutor and there was no perfect candidate.

That does not mean, however, that Khan’s election was a “beauty contest” in which states traded votes “like cryptocurrency.” Vamos-Goldman presents no evidence in support of that description, and everything we know about the election suggests that states actually supported Khan because they believed — however contestably — that he was the strongest candidate. Khan’s resume speaks for itself: he was clearly one of the most qualified candidates in the race, as even his detractors acknowledge. Moreover, if anything, Khan’s nationality hurt his chances, not helped them. Whenever I tried to make the case for Khan, whether speaking to diplomats or NGOs or ICC scholars, the response was literally (literally literally, not figuratively literally) always the same: there was no way states would let the UK have a British Prosecutor, a British Registrar, and a British judge. That was hardly an irrational view, given that in 2017 states rejected the ICJ candidacy of Christopher Greenwood, one of the world’s most respected international lawyers, ensuring that the UK would not have a judge on the Court for the first time in its history.

Yet elect Khan states did. And although the election was contested, consensus was tantalizingly close to being realized — just a few states off — before Spain nominated Castresana, Ireland nominated Gaynor, and Italy nominated Lo Voi. States were thus quite obviously willing and able to look beyond Khan’s nationality, supporting him because of his “merits and qualifications,” not despite them. A “beauty contest”? I don’t think so.

Again, the UK and the US (and other democracies) deserve to be criticised when they undermine international criminal justice. But their nationals should not be forced to wear a scarlet letter on account of their nationality when they seek election or appointment to important international positions. They should be judged as individuals, on their own merits. To do otherwise will simply deprive the international criminal justice system of some of its most able lawyers — something the system can hardly afford, for many of the reasons Vamos-Goldman mentions.