Selecting the ICC’s Next ASP President: High Scrutiny for High Stakes

[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.]

This summer I posted about the importance of the International Criminal Court’s decision in selecting its third Prosecutor. The Court has come under fire for its substandard performance and results since launching operations in 2003 and was thus recently subjected to an external “Independent Expert Review of the ICC and the Rome Statute System” (IER). The IER issued its Final Report on September 30th and, although it overtly focused on recommendations for larger systemic change, a good portion of its analysis calling for improvements related to the Office of the Prosecutor (OTP) was implicitly reactive to problems experienced during the OTP’s first years under the leadership of Luis Moreno- Ocampo.

The latter’s lapses were thoroughly exposed in 2017 by the “European Investigative Collaboration” (consisting of a combined six media outlets, as described here), which revealed a web of OTP dysfunction and corruption that included acting for personal financial gain, influence peddling and violation of basic canons of confidentiality and disclosure. In fact, given this body of evidence, and going beyond the macro-approach of the IER, the Norwegian Helsinki Committee (NHC) has called for an inquiry into individual wrongdoing. Therefore, in light of the concerns that gave rise to the IER and the calls for individual investigations, I had stressed in my summer post that it was crucial for the future success and legitimacy of the ICC to get its selection of the third Prosecutor right. Other and more recent commentary has echoed that sentiment (here and here).

But what has been ignored, to date, is another crucial decision that the ICC membership must make soon: its selection of the next President of the Bureau of the Assembly of States Parties (ASP) of the Court. In fact, the two decisions may be linked – the next ASP President, who, on behalf of the Assembly provides the ICC with management oversight, will likely play a key role in the appointment of the next Prosecutor. And the choice to be made is of particular significance this time given that one of the leading candidates for the job, Silvia Fernández de Gurmendi, was Prosecutor Moreno-Ocampo’s first Chef de Cabinet (and later became an ICC Judge and President). In fact, in its request for an inquiry into individual OTP wrongdoing, the NHC has specifically called for an investigation of Ms. Fernández de Gurmendi. 

Thus, once her candidacy was announced, the NHC followed up with an October 26, 2020 letter to current ASP President O-Gon Kwon expressing a “serious concern that likely future revelations about her previous role in the [OTP] will undermine a successful performance as [ASP] President and also the authority of the wider ICC System. Such problems are the last thing the Court needs during the critical next three years.”

Are the NHC’s concerns well-founded? Certainly, it would be problematic to question Fernández de Gurmendi’s fitness for the job based merely on her having served under Moreno-Ocampo – guilt by association alone should not be grounds for disqualification. But there is evidence indicating her own questionable behavior as Chef de Cabinet.

Fernández de Gurmendi’s relationship with the ICC began when she served as an Argentine diplomat for the negotiations that led to the 1998 creation of the Court in Rome. By currying favor with the United Kingdom and Canada, she was able to shepherd through Moreno-Ocampo’s successful candidacy as the ICC’s first prosecutor. According to Morten Bergsmo (here), who served as the OTP’s Senior Legal Adviser during the ICC’s early years, as well as ICL expert Christopher Mahoney (here), Fernández de Gurmendi persuaded Moreno-Ocampo that political payback required the OTP to hire Britons and Canadians. When Bergsmo protested that one of the candidates in question was not the most qualified and that hiring him for the relevant position would violate institutional recruitment rules, he was sharply rebuked. At Fernández de Gurmendi’s apparent urging, and in an environment of “fear and intimidation,” the OTP’s chief investigator was then asked to “dig up dirt” on the stronger competing candidate so as to justify the political hiring of the weaker, politically favored one.

But the untoward influence did not end at the recruitment stage, according to Mahoney (here). He notes that one of Fernández de Gurmendi’s “payback” hires, Gavin Hood, coming from the British Foreign and Commonwealth Office, “sought to shape OTP operations in the interests of the U.K. government.” Thus, to quote Mahoney, Hood had an impact on “which situations [and cases] would be selected for prosecution.” In particular, with respect to the ICC’s Situation in Uganda, Mahoney suggests (here) that Hood’s influence contributed to the OTP prosecuting figures in the Lord’s Resistance Army but not suspected Ugandan government/military war criminals, including President Yoweri Museveni, a “strong ally.” Despite compelling evidence of the crime of forcible transfer of population that could be pinned on Ugandan authorities, per Mahoney, the failure to pursue Museveni and his top military brass was based on Hood advancing “spurious arguments” to protect political interests.

Questions regarding Ms. Fernández de Gurmendi’s fitness to serve as ASP President have also been raised in respect of incidents during her tenure as an ICC Judge and President. One of those incidents is captured in a publicly available decision of the International Labour Organization Administrative Tribunal (ILOAT). In 2012, on the orders of Pre-Trial Chamber I, with Fernández de Gurmendi presiding (the ILOAT decision does not explicitly note this but verification can be found here), a team of ICC personnel was sent to Libya on Court business without PTC I having verified that the employees had been accorded the necessary privileges and immunities. The ICC staff were arrested, detained, and mistreated by Libyan authorities. One of the staff members sought compensation for the ordeal and the case eventually went to the ILOAT. In a June 2018 decision awarding damages to the staff member, the ILOAT found that “there were significant gaps in the ICC’s mission planning framework,” including a failure to assure the employees sent to Libya were covered by the necessary privileges and immunities. Does the blame here fall squarely on the shoulders of PTC I, which had authorization and oversight responsibilities, or is this strictly the fault of the Registry, which handled trip logistics? 

Another publicly available document, a Request to the ICC Presidency to seek UN funding to help pay for defense costs (“Request for Funding”), also might raise concerns. Not long before Judge Fernández de Gurmendi became ICC President, the UN General Assembly (UNGA), in its September 2013 Resolution 67/295, recognized the financial burdens placed on the Court by the UNSC referrals (for the Situations in Darfur and Libya) and declared that, pursuant to Article 115(b) of the Rome Statute, it wished to fund the activities of the Court in relation to those Situations. This was meant to trigger negotiations between the Presidency (per Articles 38 and 43(2) of the Rome Statute – respectively empowering the Presidency and placing the Registry under its aegis) and the UNGA for an agreement on UN financing in those Situations pursuant to Article 13(1) of the ICC-UN Relationship Agreement. However, on assuming the Presidency of the ICC at the beginning of 2015, and for the rest of her term, Fernández de Gurmendi failed to initiate this process (granted, neither had her predecessor). Thus, by the time her term ended in 2018, this golden opportunity to secure significant external funding was lost and the ICC has continued to bear a heavy burden. (To put that in perspective, per ICC figures included in the Request for Funding, through 2019, the costs of the Court’s activities in the Situations in Darfur and Libya amount to roughly 50 million euros or more than a third of the Court’s total budget for an entire year – updated figures for 2020 indicate that the sum is now over 60 million euros.)

When seen together, these individual incidents raise questions with respect to Fernández de Gurmendi’s professional and ethical judgment as well as her administrative and financial management. In that regard, it would seem problematic to ignore the concerns regarding Ms. Fernández de Gurmendi raised in the NHC’s October 26th letter. Should she be elected ASP President in the current climate, which is becoming more critical of and at times overtly hostile toward the Court, can we be sure that more detailed allegations against her will not surface? Is this a risk that responsible ICC States Parties can afford to take?   

The reasons the ICC must get it right in terms of its next Prosecutor selection apply with equal force to its next pick for ASP President (who, in turn, may play a significant role in choosing the Prosecutor at the Assembly’s next Session, scheduled for December). Should a key person so intimately connected to the ICC’s “original sin” of making Moreno-Ocampo its first Prosecutor become the next ASP President? Prudence would seem to counsel against it. Certainly, Ms. Fernández de Gurmendi deserves fair and even-handed consideration that is in no way tainted with guilt by association. That said, and equally true, a very high degree of scrutiny is in order. Per the NHC, the next ASP President must adhere to the highest professional standards so as to “strengthen the ICC and its role as guarantor of international justice.” In fact, the NHC’s counsel may not be expressed in sufficiently dire terms. Given nearly two decades of tumult and perceived failure, rather than an aspirational hire, this could prove to be an existential choice.