Current Development: The appointment process for the next ICC Prosecutor: Form and substance must be mutually reinforcing

• Jurisdiction: South Africa
• Pages: 135-143
• Published date: 30 October 2020
• Citation: (2019) African Yearbook on International Humanitarian Law 135
• Date: 30 October 2020
• Author: Vigneswaran, K.

135

The appointment process for the next

ICC Prosecutor: Form and substance

must be mutually reinforcing

Kate Vigneswaran*†

Debates about form and substance in the election process for the next

Prosecutor of the International Crim inal Court (ICC) reveal the chasm

between the regime governing appointments to international courts

and tribunals and the international law and standards that apply to

domestic appointments. T he prioritisation of political consensus-

building over demonstrated merit in the international justice arena

has the potential to undermine the goals of t he new procedure adopted

by the Assembly of States Parties (ASP), which include ensuring that

prosecutorial appointments meeting the Rome Statute of the ICC

(Rome Statute) criteria and diverse skill set required are made in a

‘structured and transparent manner.’1

The Rome Statute and its implementing documents provide limited

detail concerning the process for the appointment of ICC ofcials,

leading the Bureau of the ASP to develop Terms of Reference which

established the Committee on the Election of the Prosecutor (CEP)

and an Advisory Panel of Experts.2 The CEP, upon the advice of the

Panel, reduced the applicant pool from 89 to a longlist of sixteen and,

after interviewing fourteen candidates, reduced them to an unranked

shortlist of three men and one woman – Morris A nya, Fergal Gaynor,

Susan Okalany and Richard Roy.3 According to the CEP, all longlisted

candidates were subject to ‘detailed reference checks, checks of

publicly sourced information (including candidates’ own social media

* Senior Legal Advi sor at the International Commission of Juri sts.

† The opinions expres sed in this ar ticle are those of t he author and do not

necessarily re ect the position of the International Com mission of Jurists.

1 Assembly of States Part ies, Bureau of the Asse mbly of States Parties: Elec tion

of the Prosecutor – Terms of Refer ence, ICC-ASP/18/INF.2, 11 April 2 020

(ASP ToR) para 3. See also ar t 42(3) of the Rome Statute of the Internationa l

Criminal C ourt of 17 July 1998, available at ps://www.icc-cpi.int/nr/

rdonlyres/ea9aeff7-5752-4f84 -be94- 0a655eb30e16/0/rome_statute_e nglish.

pdf> (accessed on 19 August 2 020).

2 Assembly ToR, paras 4 and 7.

3 Report of the Committee on the Electio n of the Prosecutor ICC-ASP/19/INF.2

(30 June 2020) (CEP Repor t) paras 3, 18–19. Two candidates withdrew their

applications prior to the inter views.

(2019) African Yearbook on International Humanitarian Law 135

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