The ICC Colloquium Series – The International Criminal Court Prosecutor Selection Process: A Post-Mortem
In February 2021, the ICC Assembly of States Parties elected Mr. Karim Khan to replace the current Prosecutor, Fatou Bensouda, whose term of office ends in June 2021. However, concerns were raised by African States and other States Parties, along with civil society about “the process” for the ICC Prosecutor’s selection. States and civil society were particularly concerned given the Prosecutor’s significant role within the ICC system. Therefore, CILPA’s Africa and the ICC Research Project decided to convene an ICC Colloquium, hosting four separate roundtables for 2021 with leading experts from academia, governments, and civil society focusing on the ICC’s work and paths forward.
On Monday, March 29, 2021, the Center for International Law and Policy in Africa (CILPA), with the co-sponsorship of the American Society of International Law (ASIL), and the International Nuremberg Principles Academy (INP), hosted its first virtual roundtable in the ICC Colloquium Series for 2021. In light of the recent election, of the ICC Prosecutor, the first event focused on the ICC Assembly of States Parties’ Prosecution selection process.
In his opening remarks, CILPA’s Founder and Professor of Law at Florida International University, Professor Charles C. Jalloh, stated that the objective of the first-round table was to assess the ICC prosecutor selection process from a government, academic, and civil society perspective. Professor Jalloh’s remarks stressed transparency of public institutions and how the discussion may be used to further the conversation with the ICC and its States Parties in the hope that it might strengthen future competency-based searches for ICC Prosecutors. It was important, in his view, that future processes benefit from the lessons of the most recent process while memories are still fresh. Such would be one way to improve the competency-based system, which unlike the previous ICC elections, had some additional innovations including an independent panel of experts. He hoped that, like the ASP did in 2011 following the election of the second ICC Prosecutor, the ASP might take up the search Committee’s recommendation for the convening of a study on how future prosecutor elections could be strengthened.
In following Professor Jalloh’s opening remarks, Mr. Klaus Rackwitz, Director of the International Nuremberg Principles Academy, called “CILPA an important addition to the research and advancement on international and regional law.” Director Rackwitz praised the efforts of CILPA and Professor Jalloh in presenting this timely discussion and committed the Nuremberg Academy to future cooperation in the ICC Colloquium series. Similarly, Mr. D. Wes Rist, Deputy Director of the American Society of International Law, stated he strongly supported the role that CILPA was undertaking to evaluate international bodies, such as the ICC. Further, Deputy Director Rist recognized that reviews, such as this event on the ICC selection process, helps ensure these international organization were achieving their stated objectives. ASIL looked forward to partnering with CILPA in the remainder of the series and on other projects.
The event continued by Professor Jalloh introducing the speakers. He then posed questions to individual panelists and the panel as a whole. Ms. Sabine Nölke, former Canadian Ambassador to the Netherlands, and the Chair of the ICC Committee on the Election of the Prosecutor explained how the processes leading up to the election of the new prosecutor occurred. She recalled the importance of the competency requirement for the Court and how that was considered in drafting the Prosecutor’s job posting. She also emphasized the role of the panel of experts advising the selection process. Ambassador Nölke recalled that even with the guidance of the panel of experts there were still concerns from States about regional and gender representation.
Ambassador Nölke also reminded attendees that if member States wanted to take competency requirements seriously in the election of the ICC Prosecutor, then States must bring the vacancy to the attention of good and competent candidates, as it relates to the “competency” and “high moral character” requirements listed in Article 42 of the Rome Statute. However, in addressing the “high moral character” requirement and the demands by members of civil society that a channel be created to receive complaints against candidates, during the 2019-2020 process, Ambassador Nölke recalled that the ad hoc Committee she had chaired was still bound by the demands of due process, and the requirement that complaint procedures be supported by a sound legal framework. She recalled that individuals who are applying to the ICC Prosecutor’s Office were simply candidates and not employees of the institution, thus providing due process (including any form of a hearing) is substantially more difficult than general workplace complaint mechanisms. In the end, however, the Committee still recommended the application of some vetting standards, using the Registry of the Court. This ad hoc arrangement agreed by the ASP Bureau, and the candidates, was the first such effort for an ICC principal though this could not lay claim to being comprehensive.
In turn, Ms. Angela Mudukuti, of the Open Society Justice Initiative, agreed with Ambassador Nölke on the importance of competency and especially the significance of the “high moral character” standard under the Rome Statute. Although, recognizing the need for improvement in the vetting process Ms. Mudukuti still stated that the Committee on the Election of the Prosecutor went further than ever before by requiring the Safety and Security section of the ICC conduct background and screening checks on the candidates. However, Ms. Mudukuti suggested that the selection process must go further and she recommended a vigorous but fair background vetting process in respect of the “high moral character” criteria for the Chief Prosecutor.
In her view, ensuring the selection of a Prosecutor who has no history of bullying or workplace sexual harassment is important for numerous reasons including ensuring the safety and wellbeing of staff, and safeguarding the Court’s reputation. Moreover, she noted the concern for high-moral character was also something that had also been flagged during the review process. In response to a question from the moderator, Ms. Mudukuti further agreed that the vetting process should not be limited to the ICC Prosecutor, but rather it should extend to all principals such as the Registrar, the Deputy Prosecutor, and the Judges. Ms. Mudukuti urged the ASP to immediately begin developing a vetting mechanism in time for the upcoming Deputy Prosecutor Election.
Professor Jalloh flagged during the discussion that the Panel, which had not been discussed or debated in this roundtable and that he had been privileged to chair, had a different and independent role vis-à-vis the Committee. It represented one of the innovations. He hoped that the ASP might initiate a review of this recent selection process including that aspect. If that panned out, perhaps the ASP would work towards reduction of politicization and vote-trading amongst States, with the view to stressing competency. Professor Jalloh said that he was optimistic that the ASP was showing interest in improving the selection process, having actually modified in the practice, the process for selection contemplated under Article 42 of the Rome Statute. He observed that the ICC is not the only international body that suffers from vote-trading, and in fact, it was forging new paths in ways that had not been seen in other international bodies. He recalled that there were similar challenges for other elective posts in international judicial bodies, including vote trading for the International Court of Justice.
In terms of the key lessons learned from the selection experience, Mr. Owiso Owiso, doctoral researcher at the University of Luxembourg, stated he believed the whole process that led to the election of the new prosecutor was not properly shepherded. He suggested that the stress on consensus might have been misplaced, especially when it became clear that some States were keen to block it. At that stage, in November 2020, nominations could have been opened and elections carried out in accordance with the relevant provision of the Rome Statute. That might have been better than searching for an elusive consensus and asking the Committee to supply more names. Asked about the role of civil society, including NGOs and academia, Mr. Owiso opined that there was some good engagement. But he also encouraged participants to consider which NGOs, from which parts of the world, and which academics were able to participate in that discussion. He specifically recalled that during much of the conversation with academia stemmed from the global north, creating an echoing chamber between certain academia and civil society. In the end, he agreed on the need for reforms for the next ICC Prosecutor election.
Finally, Mr. Mark Kersten, of the Wayamo foundation, summarized the discussion and stressed four dominant themes that had permeated the panel discussion. First, Mr. Kersten recalled that it was clear from the panelist’s discussions there was a gap between what was feasible for the Committee and the expectations of civil society. Further, he stated that in hindsight it is now evident that there was confusion on whether the goal of the selection process was to ensure a particular outcome or to produce a fairer process.
Second, he commended the panel for providing a wide variety of views including the State perspective, civil society, and academia. Mr. Kersten stated that it is also important to understand who had buy-in towards the ICC selection process. He recalled the fact that only a quarter of all applicants for the ICC Prosecutor position were women, and how this low-level of turn-out amongst women for the position should require the ASP to do some introspection in relation to gender-parity.
Third, he recognized the need to acknowledge different views, greater transparency, and perhaps even a review of the process to identify lessons learned. In regard to lessons learned, Mr. Kersten recalled that in preparation for this ICC selection process the ASP started their internal reviews years in advance, therefore, Mr. Kersten opined that now is the time for the ASP to review the ICC selection process in the hope that the next election may not face the same issues. Finally, he joined the general hope for a review and suggested that the ICC consults with election experts to prepare well in advance of the next election.
Ultimately from these discussions, it was clear that regardless of what side the selection process was looked at from, the ICC Prosecutor selection process was fraught with challenges. However, as Professor Jalloh stressed, the ICC Selection process did demonstrate the ICC was open to reform, even if that reform was not perfect. He noted the parallel developments by the ASP concerning judicial nominations and elections had been usefully imported in key respects to improve the competency-search for the ICC Prosecutor. Moreover, going forward, these discussions showed that there are still many concerns surrounding competency, high moral character, and vote trading that must be addressed ideally long before the next prosecutor election in nine years.
“CILPA is an important addition to the community of organizations addressing research, policy, and practice on international and regional law.”
“CILPA is an important addition to the research and advancement on international and regional law.”