Four weeks before the Assembly of State Parties (ASP) at the International Criminal Court, no agreement was reached on a candidate to succeed Fatou Bensouda as prosecutor. Yesterday, November 15, the ASP Secretariat announced their decision to return to the initial list of (14) candidates. In an interview with Patryk Labuda, Justice Info looks back at the reasons for that unprecedented political stalemate. He was a visiting fellow at the Amsterdam Center for International Law and co-organized an online symposium on the election of the next prosecutor earlier this year.
JUSTICE INFO. The situation seems more than critical: it appears that the parties to the International Criminal Court (ICC) are unable to appoint the new prosecutor as planned in December. Yet in June, a selection committee selected four candidates for the post, and none reached consensus. How did we get there?
PATRYK LABUDA. The idea was that by October 22, states would appoint a candidate to be the next prosecutor, but we recently found out that the nomination period has been extended to November 22nd. Yesterday we found out that the whole election process is in motion with the decision of the Assembly to expand the list of candidates. This is an important development and it is difficult to know what is going to happen. Initially, it was expected that one of the four candidates would be shortlisted, but behind the scenes there was a battle between states that wanted to nominate one of the four candidates and states that wanted to open the selection process and include people who were on the shortlist. initial long list of 14 candidates. We now know that the second group of states prevailed.
It seems increasingly likely that no candidate will be nominated at the Assembly of States Parties (ASP) meeting in early December. Ideally, States wanted to elect the prosecutor by consensus. It seems that this is increasingly not possible. It would be the first time in ICC history that States could not reach a consensus within a self-imposed deadline. Prosecutor Fatou Bensouda is due to retire in June 2021 and it usually happens that states appoint a successor at the annual ASP meeting of the previous year. Now it looks like for the first time no candidate will be nominated and we will have to wait longer for a final decision on the next prosecutor.
A year ago, when the whole selection process was instituted, a committee on the election of the prosecutor was created to avoid political strife between states. It unfortunately did not work. On the contrary, it seems that this new selection process has made matters even more complicated. I think this may have paradoxically happened because by introducing a more formalized process, the election became even more politicized.
The first two ICC prosecutors, Argentina’s Luis Moreno Ocampo and Gambia’s Fatou Bensouda, did not command full respect on the international stage for various reasons. Is not the importance of the election of the third prosecutor this year particularly high for the future of the ICC?
The stakes are high for this election. Who the next prosecutor is will determine the future of the court, and I do not think it is worrying to indicate that the court’s future hangs in the balance. As we know, the United States has launched a joint campaign to undermine the prosecutor’s office in a truly unprecedented way, and the question of whether the next prosecutor will succumb to this kind of political pressure is rigorous. I think there is a fear among States that if the wrong person replaces Fatou Bensouda, the court and especially the prosecutor’s office could become relevant or worse.
This may explain why the election was so politicized. Add to that the fact that the shortlist drawn up by the committee did not live up to everyone’s expectations. In the first place, many states feel that the Irish candidate among the four has received an unfair advantage for various reasons, including the ‘rotation principle’ in international relations, which means that the two candidates in Africa are not seriously considered by declaring this time. It would be a diplomatic ‘faux pas’ to elect an African to the current prosecutor, who is from Gambia. So some states feel that they have not really given a choice. At the same time, some states are dissatisfied with the fact that people who are likely to be announced on the ‘long list’ soon have not made the cut – such as the Belgian Serge Brammertz, the current prosecutor of the Mechanism for International Criminal Tribunals. , or the British barrister Karim Khan, head of the Iraq mechanism, are both rumors that he is one of the favorites and regarded as very skilled practitioners with a lot of experience. In this regard, it seems that the second objection of States is that the wrong people were shortlisted.
Then there are some weaknesses of the first and second prosecutors that States presumably want to avoid. States do not want to choose someone who is not very good at managing diplomacy. Luis Moreno Ocampo was considered a very outspoken prosecutor. Some states certainly prefer a prosecutor who is more adept at conducting investigations and getting that part of the job right rather than focusing on the public dimension of the prosecutor’s office. The next prosecutor must have political gravitas, must be someone who is respected, capable of negotiating with powerful state actors. With regard to Fatou Bensouda, the quality of the investigations is a serious concern that she was unable to address during her nine-year term. Many cases fell flat on her watch.
States will pay attention to the ability of the next prosecutor to gather evidence that will stand up in a court of law. Whoever is chosen must not only be a good diplomat, but also be able to manage a team of investigators who can put together a solid case that then leads to convictions. Too many cases have collapsed in recent years, against the Kenyan president, against the former vice-president of the Democratic Republic of Congo and recently against the former president of the Ivory Coast. States want to make sure that everyone who is elected can prosecute cases that will not fall apart during the trial. I think those candidates exist, but there are, as we know, other reasons why this election is so controversial …
Are you referring to the #MeToo suspicions that a number of NGOs, including the Open Society Justice Initiative, warned about last week in a letter about ‘serious concerns about the election of the ICC prosecutor and the urgent need for investigation’?
What we do know is that the moral position of candidates played an important role in the selection. The prosecutor must be “a person of a high moral nature”, according to Article 42 of the Rome Statute. From the outset, NGOs have strongly insisted on conducting a form of investigation that will allow the state to determine whether candidates are accused of sexual misconduct. And from the beginning, there is a suspicion that there are concerns about people choosing them for this position, although it is important to note that no allegations have been made against specific individuals.
After yesterday’s decision to expand the pool of candidates, the question becomes: if states do not want to select one of the four candidates on the shortlist and at the same time cannot choose those who are reportedly involved in sexual misconduct, there are any way out of this cul-de-sac? Only states involved in the selection process can tell us with certainty what is preventing them from selecting a candidate, but there is certainly a perception among court observers who are outside of the process itself, like me, that this issue of ‘ moral character ’causes much greater problems this time than in the previous election nine years ago. It seems clear that this issue is affecting the election. I think we have reached a kind of impasse, not only because of what the states are doing behind the scenes, but also because the selection process that was instituted last year does not have the formal power to solve these problems. The prosecutor’s election committee does not have the mandate to determine the validity of allegations of sexual misconduct. If there is no process to ensure that it is addressed in a satisfactory manner, it is a real ‘catch 22’ for states that also cannot ignore such allegations.