The International Criminal Court’s (ICC) Prosecutor has a nine-year tenure, and the position will be up for election in December 2020. The ICC Assembly of States Parties (ASP) has decided to establish a committee to facilitate the election process. Importantly, the terms of reference [pdf] for the committee establish that the committee’s composition should be decided by the end of June 2019. In December last year, the Open Society Justice Initiative advocated for the committee to be in place sufficiently in advance of the election to allow adequate time for preparations.
The committee 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. An advisory panel of five independent experts, drawn from the same regional groups, will assist the committee to discharge its mandate. The experts and the committee members must be of different nationalities.
Over the next few weeks, the ASP Bureau, a group of states that assists the ASP in the discharge of its responsibilities in between the body’s annual convening, will select the individuals that will be charged with the important task of identifying the best candidates for the position of prosecutor. The committee, with the experts’ assistance, is responsible for three main tasks: reviewing applications (including interviewing candidates), creating a shortlist of applicants, and presenting it to all states parties for them to make a final decision. The Bureau will select both the state representatives and independent experts for the advisory panel. As the state parties who are members of the Bureau engage in such important decision-making, the Justice Initiative would like to recall the principle that is most relevant to their work: independence.
Both the committee members and the independent experts must have a track record of proven independence. According to the terms of reference, “[t]he members of the Committee shall serve in an individual capacity and shall not seek, or act on, instructions from any external source.”
Regarding the appointment of independent experts specifically, there are four additional considerations the Bureau should keep in mind:
- It is vital that they possess specific expertise in complex international or transnational investigations and prosecutions. In particular, they should have experience in sexual and gender-based violence, considering the attention given to sexual and gender-based crimes in the Rome Statute and the need to prosecute such crimes. It is expected that experience in complex investigations will carry an understanding of the difficult political environment in which the Office of the Prosecutor and the court operate.
- Experts should have significant management experience in order to appreciate the candidates’ capacity to provide leadership and effective administration and oversight to an office of over 350 staff members and to liaise effectively with actors both within and outside the court.
- Experts must have applied knowledge of international criminal law in order to test the candidates’ own familiarity with that branch of law. International criminal law is the law applied at the ICC, and the ICC prosecutor must consider the applicable legal framework when making decisions in relation to the investigations and cases that her or his office will bring. A new prosecutor may also want to reconsider the policies and structures that the ICC Office of the Prosecutor has applied to date and/or evaluate their implementation. Understanding the branch of law those policies and structures are anchored in will give candidates the necessary tools to evaluate past practice.
- Experts should possess demonstrated expertise in working with individuals and/or communities affected by atrocity crimes. The ability of the ICC prosecutor to communicate effectively is key because of the public nature and the prominence of the ICC. In particular, the prosecutor must be able to engage with communities affected by the crimes under ICC jurisdiction, who often look to the ICC for a response to the atrocities they suffered. These are often vulnerable communities with limited experience of justice institutions. Experts who have previously engaged with individuals or communities affected by atrocity crimes will be able to assess the candidates’ skills to communicate with that constituency effectively.
When appointing the committee members and independent experts, the Bureau shall have “due regard to gender and geographical balance, and adequate representation of the principal legal systems of the world,” as established in the committee’s terms of reference.
Over the next few weeks and months, the Justice Initiative will continue to monitor and report regularly on developments around the election of the next ICC prosecutor.