Search Underway for New International Criminal Court Prosecutor

The court is in the process of selecting its third chief prosecutor, who will manage a team of some 350 people while walking a political tightrope.

The International Criminal Court, or ICC, in The Hague, Netherlands. (AP Photo/Peter Dejong, File)

THE HAGUE, Netherlands (CN) — Plagued by technical issues and mired in controversies, the selection process for the next prosecutor of the International Criminal Court includes an uphill battle against political infighting, sexual harassment allegations and Covid-19. 

“This is a circus now,” Susan Okalany, one of four shortlisted candidates for the role at the world’s only permanent court for war crimes, told the a virtual panel on Thursday after her connection repeatedly cut out. The Ugandan judge wasn’t the only one frustrated with the technical issues. The feed, publicly live-streamed, repeatedly lost both its video and audio connection during the two days of hearings. 

Court watchers joked that when the video returned, it would be a soldier telling everyone the military was in charge now, referring to the common practice in military coups when a state television’s channel goes blank before a military commander announces the head of state has been deposed. 

The selection of the third prosecutor for The Hague-based court, known as the ICC, is markedly different from the last two times. Argentinian Luis Moreno Ocampo, the first person to hold the position, was the only candidate on the ballot when he was unanimously elected by states. For the selection of Ocampo’s successor — the current prosecutor, Gambian Fatou Bensoudaa search committee was created for the first time, privately reviewing 51 applications before selecting four.

The two previous selection procedures had come under fire by nongovernmental organizations for being too political.

“There was a lot of backroom political dealings. You vote for my candidate, I’ll vote for yours,” said Mariana Pena, a senior legal adviser at the Open Society Foundations, a grantmaking network that supports civil society groups.

“This happens across institutions,” said Mark Kersten, a senior consultant at the Wayamo Foundation, a nonprofit focused on international criminal justice. 

The Rome Statute, which established the ICC, stipulates that prosecutors be elected every nine years via secret ballot by the Assembly of States Parties, or ASP. The ASP oversees the court and is made up of representatives from the treaty’s 123 members. For this election, the ASP created the Committee on the Election of the Prosecutor to review applications and compile a shortlist of no more than six people for the ASP to consider.

Assisted by a panel of independent experts, the five-person committee includes one person from each of the United Nation’s five regional groups: Africa, Asia-Pacific, Eastern Europe, Latin American and the Caribbean and Western Europe and Others, which includes Australia and Canada. 

The prosecutor’s job goes beyond trying cases. The Office of the Prosecutor, or OTP, identifies situations to be investigated and suspects to bring to trial, and obtains the evidence to be used against them. The next prosecutor will manage a team of some 350 people all while walking a political tightrope in an increasingly hostile landscape. 

Earlier this year, President Donald Trump announced sanctions against ICC personnel in retaliation for  an investigation into war crimes committed by the U.S. military in Afghanistan. Last year, the U.S., which is not a member of the court, revoked the current prosecutor’s visa to travel to the United States. 

It isn’t just the U.S. that has problems with the court. The African Union backed a plan in 2017 for African countries to withdraw from the Rome Statute en mass, over complaints the court was only prosecuting African nationals. Burundi became the first country ever to do so later that year.

Fatou Bensouda, chief prosecutor of the International Criminal Court, appears at the trial of accused Islamic militant Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud on July 14, 2020. (Photo via International Criminal Court)

South Africa and the current prosecutor’s home nation of The Gambia did as well, but South Africa’s withdrawal was blocked by its constitutional court and The Gambia was readmitted after longtime ruler Yahya Jammeh was toppled. Last year, the Philippines became the second country to leave and not return, after the ICC opened an investigation into President Rodrigo Duterte’s role in extrajudicial killings in the country. 

Despite Covid-19, the selection committee, over the course of a year, reviewed applications, interviewed candidates and in June announced a shortlist of four candidates: Morris A. Anyah of Nigeria, Fergal Gaynor of Ireland, Susan Okalany of Uganda and Richard Roy of Canada.

On Wednesday and Thursday, all four gave opening and closing statements and answered questions publicly about their approaches to management, their prosecutorial philosophies and thoughts on the political nature of the role. Due to Covid-19 travel restrictions, these hearings had to be held remotely. 

“This has been a welcomed change,” said Melinda Tayor, a defense lawyer who has represented Saif Al-Islam Gaddafi, the son of the late Libyan ruler Muammar Gaddafi, and Jean-Pierre Bemba, the former vice president of the Democratic Republic of Congo, before the ICC.  

But not everyone is happy. When the four-person shortlist was announced in June, many court watchers were shocked. Many in the international criminal law community hadn’t heard of some of the finalists before.

“It was not the expected names,” said Kevin Heller, professor of law at Australian National University.

Kenya, which is a member state, rejected the shortlist and accused the selection committee of pointing the nomination process in a certain direction. There are rumors that other countries are considering doing the same. 

Of the four people on the shortlist, only two have international criminal law experience, Anyah and Gaynor. Only Gaynor, a senior prosecutor at the Cambodia Tribunal, has prosecutorial experience. Anyah is a trial lawyer who most notably represented former Liberian President Charles Taylor before the Special Court for Sierra Leone.

Okalany is currently a judge on the Ugandan high court and led the prosecution of the perpetrators of a 2010 Al-Shabaab attack in the capital city of Kampala that killed 74 people. Roy, the fourth candidate, is senior general counsel at the Public Prosecution Service of Canada. 

Two names have been oft-cited as missing from the list: Karim Khan, the head of the U.N. investigative team for crimes committed by the Islamic State terrorist group, and Serge Brammertz, chief prosecutor for the International Residual Mechanism for Criminal Tribunals.

“The committee concluded that the court needs a different type of prosecutor,” said Heller. 

It’s not clear why Khan or Brammertz weren’t included in the shortlist. They could have been, as the search committee was asked to produce a maximum of six names, but it’s also not clear why anyone was picked for the shortlist. The longer list of 16 candidates is not public. 

An exterior view of the ICC. (AP Photo/Mike Corder)

It’s an open secret that the ICC has suffered from poor management. A 2018 survey of court staff found that nearly half of staff members said they had been the victim of discrimination, bullying or harassment while working at the court.

The Rome Statute specifies that the ICC prosecution team must be of “high moral character,” a phrase that has engendered copious debate over the past year. 

“Hiring someone who has been accused of harassment runs contrary to our whole project,” said Danya Chaikel, an international criminal lawyer and member of ATLAS, an organization that promotes the careers of women in international law.

The group wrote an open letter to the search committee calling for a procedure for assessing complaints of harassment against candidates after someone approached Chaikel with allegations of sexual harassment against a person believed to be on the longlist.

“There was no process for this, it is absurd,” Chaikel said.

The selection committee’s chair, Sabine Nolke, Canadian ambassador to the Netherlands, indicated on the international justice podcast Asymmetrical Haircuts that the ICC was in danger of spending more money on labor disputes than on investigations. 

During Thursday’s hearing, ASP Vice President Michal Mlynár did not help the court’s reputation as a sexist workplace when he told the only woman on the shortlist, Okalany, to “give me a smile” in the midst of technical issues with her feed.

Many watching the healing were outraged at the sexist trope. “You’d never say that to a man,” one person wrote on Twitter. 

“Nothing cannibalizes itself like the court,” said Kersten, the Wayamo Foundation consultant who wrote an article for the international legal website Justice in Conflict outlining how badly the technical problems reflected on the process and the court. 

The year-long search process could in the end be for nothing. When the ASP meets in December, nothing prevents it from electing another person entirely.

“They don’t have to pick someone from the shortlist,” said Heller, the Australian National University professor.

If the ASP does select someone else, Chaikel, who helped draft the questions posed to the candidates during the public hearings, said they should go through the exact same vetting and examination process as the current candidates.

“It needs to be done fairly,” she said.

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