ICC Elections: Monitoring How the Next ICC Prosecutor is Elected

In December 2020, members – also known as States Parties – of the International Criminal Court (ICC) will be electing the court’s next prosecutor. It is a critically important position that carries both power and great responsibility. Indeed, the election will only be the third in the court’s history and represents a milestone for an institution with global reach, but one that is still finding its way.  

According to Article 42 of the Rome Statute, the court’s founding law, “The Prosecutor shall have full authority over the management and administration of the Office [of the Prosecutor], including the staff, facilities and other resources thereof.” The Office of the Prosecutor (OTP) is referred to as the investigative and prosecutorial “engine” of the court and is responsible for examining situations where genocide, crimes against humanity, war crimes, and aggression may have been committed.

As the leader of the OTP, the prosecutor must decide which cases to prioritize – often based on limited resources. When those cases go wrong, it is the investigation methods and strategy of the OTP that take most of the blame. Further complicating the role, and while not explicit criteria, the prosecutor is expected to fulfill diplomatic obligations, including negotiating cooperation agreements with states (including with “unsavory” actors), and represent the office’s interests before a range of intergovernmental bodies.  

There are additional challenges the ICC prosecutor must confront, including investigating situations of ongoing conflict, sometimes in the face of noncooperation from states. The OTP also has to operate in numerous situations across the globe, which are each entirely different from one another, while States Parties have asked for the court’s budget to be curtailed. Furthermore, specific threats to the prosecutor’s independence have also been made, such as the U.S. State Department’s revocation of the prosecutor’s visa in April.

The work of the OTP has come under particular scrutiny after two high profile acquittals: former Democratic Republic of Congo vice president Jean-Pierre Bemba in June 2018 and former Ivorian president Laurent Gbagbo in January this year. These acquittals have put a spotlight on the investigative and prosecutorial performance of the OTP, in addition to the fact that, to date, the OTP has only secured three convictions of individuals for core crimes under the Rome Statute. This has given commentators reason to criticize the prosecutorial strategy of the office.

With the term of the current prosecutor, Fatou Bensouda, ending in two years, now is the time to think about what profile her successor should have and how to ensure that the election process is maximally transparent, accessible, and grounded in objective criteria. Some commentators have also said this could be a chance for a “clean slate” for the beleaguered court.

In November 2018, the Open Society Justice Initiative called the election of the next prosecutor a “critical turning point” for both the OTP and ICC as a whole and presented several recommendations to the Assembly of States Parties (ASP) and its Bureau in how it goes about its search and assessment process. The election of the prosecutor is scheduled to take place at the 19th session of the ASP in December 2020, but what happens between now and then will be crucial to ensuring the candidate not only possesses criteria laid out in Article 42 of the Rome Statute, but also has outstanding managerial experience and demonstrated independence and impartiality.

It is important to note that alongside the election of the next prosecutor, the ASP will also be electing six new judges to sit at the court in The Hague (the ICC has a total of 18 judges). Similar to the OTP, judges at the ICC have come under scrutiny as well for demanding a higher wages (despite their already generous, tax-free salaries), decisions of questionable quality, taking political appointments while still serving on trials, and problematic public statements.

In order to bring more attention to the election of the next ICC prosecutor and judges, International Justice (IJ) Monitor will be periodically reporting on developments on the processes involved and providing commentary based on the Justice Initiative’s recommendations to the ASP. We hope that IJ Monitor, through its “ICC Elections” series, can serve as a resource for practitioners, academics, and civil society in the field of international criminal justice who will undoubtedly be following the upcoming ICC elections closely.

In addition, we hope to share perspectives from others outside of the immediate election process, with specific focus on the OTP. What lessons can be learned from prosecutor elections in the domestic context? What priorities do civil society in situation countries want the next ICC prosecutor to focus on? What reforms should the next prosecutor be committed to undertake within the OTP? These are some of the questions we will address throughout this series.

We will also be engaging the social media platforms of Twitter and Facebook to share this information. Users can follow the hashtags OTP2020, ICCElections, and ElectTheBest from now until the elections in 2020.

It is imperative that the ASP identify the best person, who not only can most faithfully execute their prosecutorial duties under the Rome Statute, but also renew hope for victims of mass atrocities and the broader international community that the OTP is up to the task of investigating and prosecuting the world’s most heinous crimes. The future of the ICC depends upon it.

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