Electing the Next ICC Prosecutor: Why Process Matters

In a November 2018 briefing paper, the Open Society Justice Initiative called the election of the next International Criminal Court (ICC) prosecutor a “critical turning point” for the institution. On this point, there appears to be rare unanimity: states parties, civil society, and court officials alike recognize the key role that the new prosecutor will play in steering the future of the institution, at a time when the Office of the Prosecutor – and the court itself – is under increasing scrutiny.   

Process matters, whether it applies to the highest post at the UN or members of regional human rights bodies, so before turning to who will be elected the next ICC prosecutor in December 2020, one must start with how. Last month, the Bureau of the Assembly of States Parties (ASP) published the terms of reference (TOR) [pdf] for a Committee on the Election of the Prosecutor, following vigorous advocacy from a variety of civil society groups during last year’s Assembly of States Parties and throughout the early part of this year. The terms contain some welcome improvements over previous ICC elections and could provide guidance for how other judicial officers are elected at both the international and domestic level.

First, the committee, as in years past, will be composed of one representative from each of the five regional groups: Western European and Other States; Latin American and Caribbean States; African States; Eastern European States; and Asia-Pacific States. Of particular importance, this year’s process will include a “panel of five independent experts” – one expert also drawn from each region – to “assist the Committee in carrying out its mandate.”

These experts “shall have extensive national or international criminal investigation, prosecution, or judicial experience” and will be designated by the Bureau of the Assembly of States Parties, “with due regard to gender and geographical balance, and adequate representation of the principal legal systems of the world.” Notably, no committee member and expert can have the same nationality.

Second, while the experts are not formally part of the search committee, they “shall assist [it] … in an advisory capacity.”  The TOR clarifies working methods that should ensure the expert panel’s engagement is meaningful. Importantly, it is the expert panel who will first draft the vacancy announcement for the position, building on Article 42 of the Rome Statute. Further, the panel “shall assist” the committee by reviewing the applications, “recommending” a longlist of candidates, and, critically, “participating in … competency-based interviews of the candidates.” The panel of experts will then share its assessment of the candidates with the committee prior to it producing an unranked shortlist of three to six of “the most highly qualified candidates.”

Finally, the committee’s terms of reference acknowledge the value and need for a process that is as transparent as possible.  The TOR provides, for instance, that the committee will regularly brief the ASP Bureau on its activities and shall provide an interim report on its progress by November of this year.

A timeline is also set out, with the committee and panel’s final composition to be decided upon by the end of June 2019. It is important to note here that civil society has the opportunity to put forward nominations for individuals to serve on the panel of experts by May 31, and the process for doing so is set out in this letter [pdf]. The vacancy announcement for the prosecutor will be published by August 1 (with an initial deadline of 90 days), and a final report detailing the assessment of each shortlisted candidate is due by June 2020.

Ultimately, the strength of the ICC – like all international judicial institutions – depends on the character, quality, and inclusiveness its leadership. In this respect, on its face the TOR sets some important benchmarks for other selection processes to consider. While it would have been preferable to have included independent experts as part of the search committee itself (one could worry, for instance, about the absence of such experts from the process after the shortlisted candidates are announced), the role carved out for the panel is nonetheless important. It has the potential to mitigate against the threat that the selection process becomes driven by politics, rather than what must remain the preeminent criterion: merit.

By insisting on the “best interests of the Court” – and the participation of experts who themselves have direct experience with the kinds of responsibilities the next ICC prosecutor will face – the selection process if off to a good start. However, it will be important to monitor how the committee listens to and takes on the recommendations of the expert panel. These 10 individuals must work together to select the best candidates possible.

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