Time for an African to Take on The Role of ICC Registrar

[Chidi Anselm Odinkalu (@ChidiOdinkalu) is a Professor of Practice in International Human Rights Law at the Fletcher School.] 

[Sharon Nakandha (@SherryKyama) is a Program Manager, Accountability and Justice with Open Society-Africa.]

In 20 years of the International Criminal Court’s existence, the leadership of its Registry has been an exclusive monopoly of Europeans. This is a danger to the credibility of the court. As the judges of the court prepare to elect a new registrar it is important to underscore why regional diversity is needed in this position. The implementation of that diversity should begin with the election of an African as the next Registrar of the ICC. The reasons for this are compelling.

In June 2022, the ICC Presidency made public a shortlist of 12 candidates under consideration for the position of ICC Registrar. The candidates are all nationals of ICC member states with the breakdown by regional grouping as follows: Africa (4), Asia-Pacific (1), Latin American and Caribbean States-GRULAC (3) and Western European and Other States-WEOG (4).

This announcement for a critical role in the functioning of the court has not been accompanied by the usual buzz which is the hallmark of the ICC Prosecutor election. This may be attributed to the fact that the selection process for this role is largely through an “internal” secret vote by the plenary of ICC judges, who may, however, consider recommendations from the Assembly of States Parties (ASP). From 11 to 12 October 2022, the ASP in collaboration with civil society, will organize a roundtable with the short-listed candidates, which will offer to this recruitment the required visibility beyond the usual clique of international criminal law experts.

Under Article 43 of the Rome Statute, the registry is the largest organ of the court, responsible for the non-judicial aspects of the administration and servicing of the court. The Registrar is thus the ICC’s “principle administrative officer”. The organ is, among others, tasked with providing efficient, effective, and high-quality judicial and administrative support services to the Presidency, Chambers, the Office of the Prosecutor, the defense, and victims and witnesses; implementing mechanisms to assist and safeguard the rights of victims, witnesses, and the defense; and managing the internal security of the Court.

In the first 20 years of the ICC, the role of registrar has been a European monopoly: Bruno Cathala (France), Silvana Arbia (Italy), Herman von Hebel (Netherlands), Peter Lewis (United Kingdom of Great Britain and Northern Ireland). This lack of geographical diversity in the leadership of the Registry was highlighted in the 2020 Independent Expert Review (IER) of the ICC and the Rome Statute System. At a time when the court faces legitimate criticism for the colour of its work, this is no longer sustainable. 

The registrar manages and implements the court’s budget. This fact may explain the geographical gatekeeping of this position—schedule 1 of the financial statements of the ICC for the year ended 31 December 2020, made public during the twentieth session of the ASP shows that countries from the Western European and Other States grouping (WEOG) are some of the biggest contributors to the court’s budget. It should therefore not come as a surprise that their nationals have historically been favored in the role of registrar. The unspoken rule appears that being the piper, these countries can call the tune.

As the search for the fifth Registrar of the court advances, it should be clear that a situation in which the administration of the court comes from Europe and the majority of suspects come from Africa is a danger to the credibility and mission of the court. The time has come for the judges and ASP to elect an African to this position not only as a response to the evident diversity gap but also as an opportunity to rebuild the court’s relationship with its large constituency of supporters in Africa.

Today, despite the continuing and complex relationship between the ICC and Africa, the continent has the highest number of states parties standing at 33—all but one of the persons who have been tried by the court have been from Africa and the victim constituency of the court whose management is the preserve of the registrar are also nearly entirely African. It is important to remember that this is a critical organ in defining public perceptions of the court.

It therefore requires leadership from the geographies where the court conducts most of its operations as a step towards strengthening efforts aimed at rehabilitating the brand of the ICC as a global institution and not one founded on sustaining historical colonial divisions of labour. This was one of the positive reviews shared during reflections on the tenure of Fatou Bensouda, the ICC’s first African Prosecutor.

The Independent Expert Review is instructive on the court’s main challenges, many of which implicate the registry, touching upon such issues as, the lack of effective court outreach, a poorly governed legal aid system which impacts the fair trial rights of accused persons and external legal representatives of victims, a victim participation system that is in a constant state of disarray thus disappointing victims who wish to participate in the proceedings. Separately, civil society groups and other experts have presented similar critiques of the registry on matters related to outreach,  legal aid and victim participation given the important mandate that the organ has on matters related to outreach, identification, facilitation, collection and analysis of victim applications in key cases emanating from various African contexts.

The IER report was not the first one to identify the registry’s challenges. In 2016, then registrar Herman von Hebel, released a 184-page report exclusively focused on the gaps in the registry with the broad objective of providing a comprehensive and holistic overview of its reorganization in order to allow the Committee on Budget and Finance, the Assembly of States Parties to the Rome Statute, external auditors, the other organs of the Court and others benefitting from Registry services, to gain a more thorough insight into the various aspects of the reorganization. Fast forward to 2020, the IER content did not differ significantly from Herman’s 2016 report, suggesting either resistance or institutional sclerosis in need of urgent attention.

The recurrence of these challenges clearly demonstrates the need to re-think the leadership of the Registry. It is imperative that the work of coordinating the various units in the registry, including the Public Information and Outreach Section (PIOS), the Victim Participation and Reparations Section (VPRS), and the Victims and Witnesses Section (VWS) is led by a registrar from the African continent who not only has the technical expertise to address the critical challenges which have been highlighted over the years but also the lived experience to understand and effectively respond to the broad contextual challenges in active situation and investigation countries, nearly all of which are in Africa.

Several recommendations have been shared including recently by the IER on ways to improve the work of the ICC registry. The court’s leadership now has the uphill task of reviewing and implementing these proposed recommendations while continuing with the execution of its day-to-day mandate. Given that the highest number of investigations is in Africa—DRC, Uganda, Darfur Sudan, Central African Republic, Kenya, Libya, Cote d’Ivoire, Mali, Burundi and that the challenges the IER has noted continue in ongoing Africa-related cases, a Registrar from the continent is best placed to respond to the gaps identified.

Considering the continent’s extensive experience in engaging on ICC related matters, the experience such a Registrar brings will also be beneficial in other contexts such as the State of Palestine, Bangladesh/Myanmar, Afghanistan, Republic of the Philippines, Venezuela, and Ukraine, many of which have only recently been opened. Rotating the leadership of this extraordinarily vital organ of the court to nationals of countries that are most impacted by the work of the ICC will improve its legitimacy in a range of spaces including building a much-needed citizen-driven support base for the prosecution of mass atrocities especially in the face of rising authoritarianism across the globe. While Herman von Hebel’s 2016 report pointed to an increase in the percentage of nationals of African States in the Registry since the organ’s reorganization, it is critical that the contribution of Africans extends to senior leadership roles within the Registry. Gratefully, on this occasion, the judges have an excellent slate of Africans to choose from for the position of Registrar.