BY: ISABELLE JEFFERIES, JUNIOR RESEARCH ASSOCIATE, PILPG-NL
The International Criminal Court (the ICC, the Court) has encountered many challenges since its inception in 2002, from outspoken criticism of major states, to frustration among stakeholders regarding the quality of its investigations and prosecutions, which they argue are inefficient and ineffective.
For the Court’s defenders, the election of its third Prosecutor presents an opportunity to strengthen the system created by the Rome Statute. Yet, the task of nominating and electing a suitable candidate has proven complex. This post provides an overview of the election process and assesses some of its criticisms.
The Central Role of the Court’s Prosecutor
The Prosecutor heads the Office of the Prosecutor (OTP), one of four organs of the ICC. Under article 42(1) of the Rome Statute, the OTP is responsible for identifying, examining, investigating, and prosecuting crimes falling within the jurisdiction of the Court, namely genocide, crimes against humanity, war crimes, and aggression. Under article 15(1) of the Rome Statute, the Prosecutor may initiate investigations proprio motu, or in other words, on his or her own initiative. As well as having broad powers, the Prosecutor is elected for a term of nine years.
The Prosecutor is a central actor in the system created by the Rome Statute and has a crucial role in improving the ICC’s work. In fact, the Prosecutor determines the strategies and priorities of the examinations, investigations, and prosecutions conducted by the OTP. Therefore, it has the means to enhance the efficiency and effectiveness of the Court’s performance.
Selecting the Court’s Third Prosecutor and the Importance of Consensus
The Assembly of States Parties (ASP), composed of representatives of states that ratified and acceded to the Rome Statute, is the Court’s legislator. It convenes on a yearly basis to discuss and take decisions on important issues relating to the Court’s functioning. Notably, it is responsible for electing the Prosecutor. In doing so, members of the ASP are to make every effort to elect a candidate by consensus. The ASP was successful in selecting the Court’s first and second Prosecutor by consensus, in 2003 and 2011 respectively. In the absence of consensus, the procedure set out in Article 42(2) of the Rome Statute is followed: the voting is done by secret ballot, and the candidate who receives a majority of votes wins the election. Yet, for the Prosecutor to succeed in improving the functioning of the Court, by conducting efficient and effective examinations, investigations, and prosecutions, fragmented support is not enough. It is essential that he or she has the approval of all members of the ASP, so the OTP can exercise its mandate freely. In fact, a Prosecutor that is supported by all state parties will be more resilient to efforts to derail its mandate.
The next Prosecutor was supposed to have been elected during the nineteenth ASP session, which took place in December 2020. Two bodies were established in April 2019 to facilitate the election process, and to ensure that the most suitable candidate was selected in a structured and transparent manner: the Committee on the Election of the Prosecutor (Committee), and the Panel of Experts (Experts). Broadly speaking, their mandate, carried out from July 2019 to June 2020, was to assess applications, establish and interview a longlist of candidates, and provide a shortlist of candidates to state parties, from which they would choose a consensus candidate. Their aim was to guarantee an election based on merit, and free from the political interference of states. However, in spite of these efforts made towards the facilitation of the election process, states were unable to agree on any of the candidates provided in the Committee’s shortlist.
Creating the Shortlist of Candidates: Innovative Process
The vacancy for the position of Prosecutor was published in August 2019. Applicants applied to the Committee directly, and their identity was kept confidential until later in the process, thus preventing undue interference from states. The Committee received 144 applications, but only 84 were submitted with all the information requested.
In February 2020, members of the Committee met to review the applications, having regard to the criteria set out in the Rome Statute and the vacancy announcement. Article 42(3) of the Rome Statute requires that the Prosecutor possess the following attributes: (a) a high moral character, (b) high competence and extensive practical experience in the prosecution or trial of criminal cases, and (c) excellent knowledge or fluency in English and/or French. The vacancy set out an extensive range of further requirements such as strategic awareness, leadership skills, and financial competencies. The role of the Experts was to assist the Committee in its mandate and represents a novelty from the election of previous prosecutors.
The Committee agreed on a longlist of 16 candidates who moved on to the next stage of the process: competency-based interviews. Along with the interviews, the Committee carried out a vetting process of the candidates, which also constitutes a real innovation compared to previous elections. Candidates were subject to reference checks, criminal record checks, as well as social media checks. The Independent Expert Review, commissioned at the 18th session of the ASP, made some Findings concerning the working culture of the ICC. In particular, it determined that the OTP suffers from distrust and a culture of fear, with many reported accounts of workplace bullying (Findings 62-71). As a result, the vetting process was aimed at corroborating the high moral character of candidates, and ensuring that they would not allow or contribute to such workplace harassment during their mandate.
A shortlist of four candidates, deemed to be the most highly qualified, was created by the Committee after the interviews and the vetting. The identities of those shortlisted are as follows: Morris A. Anyah from Nigeria, Fergal Gaynor from Ireland, Susan Okalany from Uganda, and Richard Roy from Canada. Their identities were revealed to the ASP in June 2020, along with a report containing an assessment of each candidate, highlighting their respective strengths and weaknesses. The mandate of the Committee and the Experts came to an end, and the ASP’s consultation process, where public hearings are held in order to identify the consensus candidate, began.
Response to the Shortlisted Candidates
Despite the extensive process undertaken to create the shortlist, Kenya rejected the candidates contained therein on the basis that they lacked the requisite managerial experience in large international institutions and state diplomacy experience. Kenya also claimed that the shortlist appeared “skewed” in favor of a particular candidate. In fact, there is a custom of regional rotation for the Prosecutor, so as Mrs. Bensouda is currently from the Gambia, Mr. Anyah from Nigeria, and Mrs. Okalany from Uganda cannot be elected. Moreover, the Rome Statute precludes, under Article 42(2), the Prosecutor from being of the same nationality as the Deputy Prosecutor. On this basis, Mr. Roy cannot be elected as the current Deputy Prosecutor, James Steward, is also Canadian. Therefore, this leaves one candidate: Mr. Gaynor from Ireland.
Upon hearing the response of certain states, several civil society organizations were quick to discourage states from nominating new candidates, calling on them to stand by the process they had established and to select one of the shortlisted candidates. Their concern was that allowing new nominees at the eleventh hour would enable them to escape the level of due diligence and scrutiny applied to those shortlisted by the Committee. However, although states are discouraged from doing so, they can nominate new candidates.
With no prospect of consensus in sight, the nomination period was extended in September, and again in October, providing additional time for the conclusion of the consultation period. Ultimately, in November 2020, the consultation process was opened up to the candidates who had made the Committee’s longlist, and who were still interested in being considered for the position. Five additional candidates were thus added to the consultation process, namely Carlos Castresana Fernandez from Spain, Karim A. A. Khan from the United Kingdom, Francesco Lo Voi from Italy, Robert Petit from Canada, and Brigitte Raynaud from France. The nomination period was extended once more until December 13, 2020, then again until December 18, 2020. However, during the 19th session of the ASP, there was still no discernable consensus candidate, so the consultation period was once again extended until January 18, 2021. In fact, the assembly decided to defer the election until early 2021.
Assessment and Implication: Concluding Thoughts
Although the election process for the Court’s Prosecutor improved from previous elections, in particular by creating the Panel of Experts to assist the Committee and by including a vetting process of candidates, critics still view the process as flawed. Ultimately, the process did not produce a consensus candidate, which puts its effectiveness into question.
A solution to the present issue may be to limit the Committee’s role in the selection process by maintaining a longlist of candidates rather than creating a shortlist.
Previously, the Committee narrowed down 86 candidates to 16 candidates in the shortlist. Limiting the Committee’s role in the selection process might prevent the uncertainties and the extensions that have marked this election, by allowing States to retain more control over the selection of a suitable candidate. Furthermore, it could be useful for the Committee to be mandated to carry out a full vetting process of candidates, in order to ensure the improvement of the working environment of the OTP.