Current Development: Transparent, structured, and qualified: Why process matters for electing the next ICC Prosecutor

• Jurisdiction: South Africa
• Date: 30 October 2020
• Author: Ankumah, E.A.
• Published date: 30 October 2020
• Citation: (2019) African Yearbook on International Humanitarian Law 129
• Pages: 129-134

129

Transparent, structured, and

qualied: Why process matters for

electing the next ICC Prosecutor

Evelyn A Ankumah and James Goldston*

Few positions at the International Criminal Court (ICC) are more

signicant than that of prosecutor. As head of the ofce responsible

for investigating situations and prosecuting cases, the prosecutor

denes not only what issues populate the Court’s docket but also,

and perhaps more critically, what does not. While the principle of

complementarity has consumed much of this conversation, the role

of prosecutorial discretion, politica l judgment, and resource allocation

is actually at the core of situation and case selec tion. They go to the

heart of the prosecutor’s job. This year, the election of the third ICC

prosecutor also arrives amidst an ongoing, state-supported ‘review’

of the Court’s performance and its place with in a larger and ever-

evolving global justice system. If done well, that review process could

offer both a political window and a potential roadmap to consider

structura l changes that a new generation of leadership at the ICC may

take forward.

It is against this backdrop that the ICC’s Assembly of States Parties

(ASP) (acting through its Bureau,1 the elected body that assists the

ASP in the discharge of its responsibilities in between its annual

sessions) established, in April 2019, a Committee for the Election of the

Prosecutor (CEP) to undertake an open and transparent nomination

process. Comprised of disting uished diplomats from each of the ICC’s

ve regions, the CEP was charged with three main tasks: reviewing

applications and interviewing candidates, creati ng a shortlist of

applicants and presenting their work to all states parties to make

the nal decision. As stated plainly by the ASP when the vacancy

announcement2 rst circulated: the ASP ‘has initiated a transparent

* Evelyn A Anku mah is the executive director of Af rica Legal Aid (AFLA). James

Goldston is the executive d irector of the Ope n Society Just ice Initiative. An

earlier version of thi s piece was previously published in Opinio Juris on 23 July

2020.

1 ICC ‘Bureau of the Asse mbly’ 21 August 2019, available at

en_menus/asp/bureau/Pages/bureau%20of%20the%20assembly.aspx> (accessed

on 19 August 2020).

2 ICC ‘Vacancy Announceme nt – Job Title: Prosecutor (Under-Secreta ry General

equiva lent)’ 31 October 2019, available at

(2019) African Yearbook on International Humanitarian Law 129

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130 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

and structured process for the selection of the next Prosecutor. It is

seeking to attract the most qualied candidates for the position of

Prosecutor of the International Criminal Court.’

The CEP was the outcome of the ASP’s desire for a ‘transparent and

structured process,’ of which three elements stood out:

(1) It was independent: as the CEP’s terms of reference3 state d,

‘members of the Committee shall serve in an individual

capacity and shall not seek, or act on, instr uctions from any

exter nal s ource .’

(2) It was guided by expertise: for the rst time, the CEP was

advised by an independent panel of exper ts in the eld –

also representing all ve of the ICC’s geographic regions –

who played an integral role in the selection process.

(3) It was transparent: the CEP’s mandate ensured it regularly

briefed the Bureau on its activities, including through an

interim report and via reg ular briengs by the ASP President

to the working groups of the Bureau both in The Hague and

in New York.

In June 2020, after 18 months of review and deliberation, the CEP

released its nal report with four shortlisted candidates: Morris A

Anyah (Nigeria), Fergal Gaynor (Ireland), Susan Okala ny (Uganda) and

Richard Roy (Canada).

There has been much speculation4 and some surprise following

the publication of the Committee’s shortlist. The four individuals –

although each possessing years of experience as international and

domestic criminal law practitioners, advocates, and judges – are not

well known to many in the international justice community. Some

had expected5 – and others hoped for – more recognisable names to

appear. Some states parties also reacted with particular d ismay: within

weeks, Kenya6 and Ivory Coast (both subjects of ICC investigations)

went so far as to publicly question the results of the CEP’s work and

asp_docs/ASP18/ICC-C EP%20Prosecutor-VA-2Aug2019.1500bis-ENG.PDF>

(accessed on 19 August 2020).

3 ICC Bureau of the Assembly of St ates Parties: Election of the P rosecutor – Terms

of Reference ICC-AS P/18/INF.2, 11 April 2019.

4 M Kersten ‘Short-List for the Ne xt ICC Prosecutor is Out!’ Justice in Conict 30

June 2020, available at /justiceinconict.org /2020/06/30/short-list-for-

the-next-icc-prosecutor-is- out/> (accessed on 19 August 2020).

5 Kevin Jon Heller ‘T he Coming Kerfu fe over the Next ICC P rosecutor’ Opinio

Juris 17 July 2020, ava ilable at opiniojuris.org/2 020/07/17/the-coming-

kerfufe -over-the-next-icc-prosecutor/> (accessed on 19 August 2020).

6 N Agutu ‘Lack e xperience? Kenya reject s four candidates liste d for ICC

prosecutor post’ T he Star 15 July 2020, available at < https://www.the-star.

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WHY PROCESS MATTERS FOR ELECTING THE NEXT ICC PROSECUTOR 133

While rotation for prominent leadership positions might be desirable

for international organisations to ensure diversity of viewpoints

and that under-represented regions participate in leadership roles,

assuming it applies for the position of ICC prosecutor – which requires

unique responsibilities, expertise, and discretion – would be unwise.

The prosecutor serves a nine-year term, and individuals with the

requisite combination of skills sets, personalit y, and knowledge may

not be available – or indeed interested – from all regions every time

there is an election. Elect ions solely based on regional rotation are at

odds with the Rome Statute’s prioritisation of merit and the ASP’s

own stated desire to ‘attract the most qualied candidates.’

Others have suggested the Canadian ca ndidate is ineligible because

there is currently a deputy prosecutor from Canada, James Stewart,

whose term expires in March 2022 (nine months after the new ICC

prosecutor takes ofce). Article 42(2) of the Rome Statute states that ‘the

Prosecutor and Deputy Prosec utor shall be of different nationalities.’

This argument is overstated and based on a wrong interpretation of

the law. Each prosecutor designates one or more deputy prosecutors:

Stewart has been outgoing prosecutor Fatou Bensouda’s deputy and

his overlap with the newly elected prosecutor will be minimal. This

is a clarication that states parties could acknowledge by way of a

resolution or, indeed, Stewart could step down early if asked to do so.

States are creative problems solvers when they want to be.

Finally, the criticism that more ‘recognizable’ names are not on

the list appears to ignore the fact that the ICC is in dire need of new

faces, diverse perspectives and fresh ideas. Indeed, it is worth noting

the signicant continuity within the Ofce of the Prosecutor to

date. Bensouda herself was the deputy of the ICC’s rst prosecutor,

Luis Moreno Ocampo, from 2002 to 2011, while many of the Ofce’s

senior ofcials have remained the same since the ICC’s early years. As

the review process currently underway attests, the ICC can no longer

afford a business as usual approach.

Above all, one should be wary of any effort to set aside a process

that was carefully negotiated by ICC states parties (in consultation

with various civil society organisations) and guided by principles of

independence, transparency, and merit. While procedura lly permitted,

nominating additional candidates at a late date would set aside the

Committee’s own independent, reasoned judgment, elevating narrow

political considerations, and pushing through new candidates with

limited transparency. There is a particular concern that ensuring new

candidates meet the statutory requirement of ‘high moral c haracter’ will

cutor-deadline-for-applic ations-extended -to-november-25/> (accessed on 19

August 2020).

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134 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

be overlooked in the context of hasty, politically driven negotiations.

All nominated candidates must be vetted robustly and equa lly.

The ICC has previously suffered the consequences of poor

leadership produced by short-circuit decision-making and back-room

deals. The mission of this Cour t, and the responsibility of the ICC’s

prosecutor, are too important to repeat that history.

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